FIREARMS OFFENSE
United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code 12020(a)(1) cannot be considered a "firearms offense" where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun).
STATUTORY INTERPRETATION - UNCONSTITUTIONAL VAGUENESS - RULE OF LENITY
John F. Decker, Addressing Vagueness: Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241 (2002).
CONVICTION - DIVISIBLE STATUTE ANALYSIS - TAYLOR ANALYSIS APPLIES TO CONVICTIONS RESULTING FROM PLEA AND COURT TRIAL AS WELL AS JURY TRIAL
Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary so as to serve as a predicate offense for a sentence enhancement).
CONVICTION - DIVISIBLE STATUTE ANALYSIS - CALIFORNIA WELFARE FRAUD OFFENSE IS A DIVISIBLE STATUTE BECAUSE IT INCLUDES LOSSES IN EXCESS OF $400 AND IS THUS OVERINCLUSIVE WITH RESPECT TO THE "IN EXCESS OF $10,000" THE FRAUD AGGRAVATED FELONY LOSS
Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California welfare fraud offense, defined in Welf. & Inst. Code 10980(c)(2), is a divisible statute with respect to the requirement of loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony as defined under INA 101(a)(43)(M)(i), 8 U.S.C.
DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE V. DISJUNCTIVE
United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) (checking box on immigration form which has statement next printed next to it saying that the person is a U.S. citizen or national could not form basis for prosecution under 18 U.S.C. 911 because that provision only penalizes claiming to be a citizen; "the district court violated a basic principle of criminal law by allowing the government to prove that an individual committed the charged offense by showing that he committed either that offense or some other act.").
RECORD OF CONVICTION
Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of First Degree Burglary and Attempted First Degree Kidnapping, in violation of Or. Rev. Stat. 163.225, 163.235, found not to be "crimes of domestic violence," under 8 U.S.C. 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent). In Tokatly v.
*This section, formerly listed with a duplicate number of § 4.49, is now referred to as § 4.49a.
CONVICTION - RECORD OF CONVICTION - DIVISIBLE STATUTE WITH SUBSECTIONS
United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. 2706(a)(2003), was not established to be a crime of violence, under USSG 2L1.2, comment (b)(ii)(I), for purposes of enhancing a sentence for illegal reentry, since the offense is divisible and only the first of the three subsections qualifies as a crime of violence).
NONCITIZEN CANNOT BE DEPORTED ON ACCOUNT OF A FIREARMS CONVICTION BASED ON A RIFLE POSSESSED FOR SPORTING, RECREATIONAL, OR CULTURAL PURPOSES
Please see our E-Newsletter of December 17, 2003 for a discussion of the topic.
