Criminal Defense of Immigrants

(A)  Crimes of Violence.  Some firearms offenses, such as assault with a firearm and drive-by-shooting, have been found to be aggravated felony crimes of violence.[121]  Simple possession offenses should not be found to be crimes of violence.[122]  However, various courts have found that possession of a sawed off shotgun was a crime of violence under 18 U.S.C. § 16(b), on the theory that no one would possess such a weapon except in order to use it to commit a violent act.[123]  A conviction for use of a firearm in the commission of drug offense was found to be a crime of violence for purposes of disqualifying a defendant from receiving a sentence reduction for nonviolent drug offenders who complete drug programs.[124]  

[121] See, e.g., Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. June 28, 2001) (California conviction in 1995 of violating California Penal Code § 245(a)(1) by committing an assault with a deadly weapon, with a sentence to one year in prison, constituted a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes); Quezada-Luna v. Gonzalez, 439 F.3d 403 (7th Cir. Mar. 3, 2006) (Illinois conviction of aggravated discharge of a firearm, in violation of 720 ILCS § 5/24-1.2(a)(1), is an aggravated felony crime of violence for immigration purposes, because the offense required discharge of firearm into a building with reasonable knowledge that building was occupied, and therefore involved substantial risk of physical force against the person or property of another); Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. § 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes).

[122] See States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since it had no element of the use, attempt, or threat of violence under 18 U.S.C. § 16(a), and since it is a felony-misdemeanor statute, that “encompasses misdemeanor offenses, it cannot meet the definition of ‘crime of violence’ in 18 U.S.C. § 16(b),”).  Cf. 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” illegal re-entry 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), following United States v. Serna, 435 F.3d 1046, 1047 (9th Cir. 2006) (interpreting different “career criminal” guideline, USSG § 4B1.2 [defining “crime of violence” differently, to include “conduct that presents a serious risk of physical injury to another . . . .” which is not in USSG § 2L1.2(b)(1)(A)(ii)); United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. Dec. 21, 2001) (Texas conviction for unlawfully carrying firearm in place licensed to sell alcoholic beverages, in violation of Penal Code § 46.02(c), was not a crime of violence for illegal re-entry sentencing purposes); United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. Mar. 24, 2003) (California conviction of possession of a deadly weapon — a dirk or dagger — in violation of Penal Code § 12020(a), does not constitute a “crime of violence” within the meaning of 18 U.S.C. § 16(b), because there is no substantial risk that an offender may use violence to perpetrate the weapon possession offense, and it therefore does not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2).

[123] See, e.g., 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).  But see United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon – a short-barrel firearm – in violation of Tex. Penal Code § 46.05, did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since there is no element or substantial risk that force will be used in the commission of the offense).

[124] Sesler v. Pitzer, 110 F.3d 569 (8th Cir. 1997).