Criminal Defense of Immigrants

(D)  Crimes of Violence Under 18 U.S.C. § 16(b).  The second part of the crime of violence definition includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[74]  Courts have used this section to hold that offenses such as statutory rape, residential burglary, and involuntary manslaughter are crimes of violence, even though these offenses do not require proof of violence or the threat of violence as an element.  See § 19.41, supra.  It is possible to argue that a particular non-substantive offense, for example, solicitation of a listed DV offense, itself involves a substantial risk that physical force may be used “in the course of committing the offense.” [75] 

On the other hand, the non-substantive offenses are distinguished from substantive offenses by having elements that do not require the substantive offense itself to be committed.  Since the substantive forcible offense need not be committed, there is no basis to argue that there is a substantive risk that force will be used in the commission of the offense, since the elements of the non-substantive offense have already been satisfied before any force is actually used.  The Supreme Court, in Leocal, has favored a common sense interpretation of these statutes.  Because the non-substantive offenses do not include any actual use of force, only some inchoate or anticipatory offense that is complete before any force has been used, this is the better argument.

[74] 18 U.S.C. § 16(b) (emphasis supplied).

[75] 18 U.S.C. § 16(b).  Cf. James v. United States, ___ U.S. ___ (Apr. 18, 2007) (attempted burglary falls within residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) because it “involves conduct that presents a serious potential risk of physical injury to another.”).