AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - STATUTORY RAPE WAS COV UNDER 16(b)
Valencia v. Gonzales, ___ F.3d ___ (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18 (here 17), in violation of Penal Code 261.5(c), with a five year suspended sentence, constituted a crime of violence aggravated felony under 18 U.S.C. 16(b), within the meaning of INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and therefore triggered removal under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), following United States v. Granbois, 376 F.3d 993 (9th Cir.
CRIME OF VIOLENCE - SEXUAL ASSAULT - ILLEGAL REENTRY
United States v. Remoi, __ F.3d __, 2005 WL 845884 (3d Cir.
AGGRAVATED FELONY - CRIME OF VIOLENCE - SHOOTING INTO OCCUPIED BUILDING NOT CRIME OF VIOLENCE SINCE OFFENSE MAY BE COMMITTED WITHOUT ACTUALLY SHOOTING, ATTEMPTING TO SHOOT, OR THREATENING TO SHOOT ANOTHER PERSON
United States v. Alfaro, ___ F.3d ___, 2005 WL 976995 (5th Cir. April 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 reentry by sixteen levels under U.S.S.G.
AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGING A FIREARM
United States v. Jaimes-Jaimes, ___ F.3d ___, 2005 WL 1083731 (7th Cir. May 4, 2005) (Wisconsin conviction for discharging a firearm into a vehicle or building, in violation of W.S.A. 941.20(2)(a), was not a conviction for a "crime of violence" so as to warrant a 16-level increase in the offense level under U.S.S.G. 2L1.2(b)(1)(A)(ii) for illegal reentry, since the elements of the offense of conviction did not require that the trier of fact conclude that defendant used or threatened use of physical force against the person of another).
AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC VIOLENCE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer, but the "physically abuse" prong "requires, at a minimum, a reckless use of physical force.
AGGRAVATED FELONY - CRIME OF VIOLENCE - CONVICTION OF HAWAII OFFENSE DOES NOT CATEGORICALLY REQUIRE USE OF VIOLENT FORCE AND DOES NOT CONSTITUTE "CRIME OF DOMESTIC VIOLENCE" FOR PURPOSES OF FEDERAL FELON WITH GUN OFFENSE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer), following United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).
AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. 16, and so does not constitute a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for immigration purposes, even if a sentence of one year or more has been imposed, holding that gross negligence is not the same as recklessness), disapproving Park v.
AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) - STATUTORY RAPE DID NOT HAVE ELEMENT OF USE OF FORCE SO WAS NOT COV UNDER 16(a)
Valencia v. Gonzales, ___ F.3d ___ (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18, in violation of Penal Code 261.5(c), with a five-year suspended sentence, did not have as an element the use or threat of force, and so did not constitute a crime of violence aggravated felony under 18 U.S.C. 16(a), within the meaning of INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), or triggered removal under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)).
AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF ASSAULT WEAPON
United States v. Serna, ___ F.3d ___ (9th Cir. Jan. 23, 2006) (sentence for felon in possession of a firearm vacated since prior 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 sentence enhancement).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410597p.pdf
AGGRAVATED FELONY - CRIME OF VIOLENCE - UNLAWFUL SEX WITH A MINOR - HELD NOT TO BE A CRIME OF VIOLENCE
Valencia v. Gonzales, ___ F.3d ___, 2005 WL 3358678 (9th Cir. Dec. 12, 2005) (original opinion, 406 F.3d 1154, superseded and withdrawn on denial of rehearing and rehearing en banc) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code section 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C.