Criminal Defense of Immigrants

(C)  Crimes of Violence Under 18 U.S.C. § 16(a).  The first part of the “crime of violence” definition[71] includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . .”[72]  By expressly listing, in addition to the substantive offense of use of force, the two non-substantive offenses of attempt and threat to use force, Congress indicated an intention that any other non-substantive offenses are excluded from this definition.  See § 22.18(B), supra.[73]

[71] 18 U.S.C. § 16(a).

[72] 18 U.S.C. § 16(a) (emphases supplied).

[73] Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for “harassment by telephone” under 720 ILCS § 135/1-1(2), prohibiting “making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number” is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute); United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code Ann. § 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing his sentence for illegal re-entry by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002), because (a) this offense is not enumerated in the guideline, (b) it does not have as an element the use or threat of force against another, since a defendant could violate this statute merely by shooting a gun at a building that happens to be occupied or by discharging a firearm within an unoccupied school building, without actually shooting, attempting to shoot, or threatening to shoot another person, so district court committed plain error in sentencing).