Criminal Defense of Immigrants

(E)  Possession of a Deadly Weapon.  The Fifth Circuit has recognized that mere possession of a deadly weapon, including a firearm, is not a crime of violence because there is no element of the intentional use of force, and no risk that force will be used in committing the offense of possession.[512]  See § 19.47, supra.  The Ninth Circuit has come to contrary conclusions depending upon the weapon involved, finding that possession of an assault rifle was not a crime of violence,[513] but possession of a sawed-off shotgun was.[514]  Apparently the difference between the two is that assault weapons have a “substantial legitimate use,” while a sawed-off shotgun does not.[515]  The court did not address the issue of whether force was likely to be used in commission of the offense, but only looked to future possible uses.  The Eighth Circuit has found conviction for possession of a firearm, with intent to use it, does qualify as a crime of violence.[516]  

[512] But see Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006) (Kansas conviction of aggravated battery under Kan. Stat. Ann. 21-3414(a)(1)(C), defined as intentional physical contact with a deadly weapon in a rude, insulting or angry manner defines a crime which is categorically a “crime of violence,” under 18 U.S.C. § 16(b) and thus an aggravated felony for removal purposes).

[513] United States v. Serna, 435 F.3d 1046 (9th Cir. Jan. 23, 2006) (California conviction for possession of assault weapon in violation of California Penal Code § 12280(b) was not “crime of violence” under the federal Sentencing Guidelines for purposes of illegal re-entry sentence enhancement).

[514] United States v. Delaney, 427 F.3d 1224 (9th Cir. Nov. 7, 2005) (California conviction of possession of a short-barreled shotgun, in violation of California Penal Code § 12020(a)(1), is a crime of violence for sentencing purposes, since short-barreled shotguns are “inherently dangerous,” their only use is violence, and thus their possession involves a substantial risk of the use of physical force).

[515] United States v. Serna, 435 F.3d at 1047-1048.

[516] United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (Iowa conviction of going armed with intent to use a weapon unlawfully, in violation of Iowa Code § 708.8, is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).  But see United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. § 76-6-203, does not necessarily constitute a “crime of violence” for illegal reentry sentencing purposes, because Utah conviction of attempted aggravated burglary may be committed by merely possessing a dangerous weapon while committing or attempting to commit a burglary, and such possession does not involve the use or threat of force).