11th Cir: Fed extortionate extension of credit isn’t categorically crime of violence; might be under modified categorical approach

The U.S. Court of Appeals for the Eleventh Circuit held that making an extortionate extension of credit in violation of 18 U.S.C. § 892(a) is not categorically a crime of violence type of aggravated felony. Accardo v. U.S. Atty. General, No. 09-15446, slip op. (11th Cir. March 10, 2011) (Carnes, Pryor, Cox). [Also available in html at Law.com.] The Court added that the BIA failed to apply the modified categorical approach, however, so rather than disposing of the case outright the Court remanded with instructions to apply the modified categorical approach. Judge Carnes wrote the panel’s opinion.

The BIA determined that § 892(a) was categorically a crime of violence. INA 101(a)(43)(F) defines “crime of violence” by cross-referencing the definition at 18 U.S.C. § 16. Section 16, in turn, defines a COV as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or (b) 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.”

The Eleventh Circuit began by explaining that determining whether an offense is a COV first requires examining “‘the elements and the nature of the offense of conviction.’” Accardo, No. 09-15446, slip op. at 4 (quoting Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)). If the statute includes some offenses that would constitute a COV and others that would not, “the Board should apply the modified categorical approach by looking to ‘the record of conviction,’ which ‘includes the charging document, plea, verdict or judgment, and sentence.’” Accardo, No. 09-15446, slip op. at 5 (quoting Jaggernauth v. United States Att’y Gen., 432 F.3d 1346, 1355 (11th Cir. 2005)).

The Court quickly concluded that § 892(a) contains some offenses that are COVs and others that are not. Accardo, No. 09-15446, slip op. at 5-6. Principally, “§ 892(a) is not categorically a crime of violence under § 16(a) because a person may commit the offense even without the attempted, threatened, or actual use of physical force against the person or property of another.” Accardo, No. 09-15446, slip op. at 11. As an example, the Court explained that “it is possible to violate that statutory provision by an understanding that failure to comply with the terms of an extortionate loan could result in harm to the reputation of the debtor through nonviolent but still extra-legal means.” Accardo, No. 09-15446, slip op. at 10-11. Such action requires no force whatsoever.

Likewise, because an extension of credit could be extortionate where it is extended “with an understanding between the creditor and debtor that failure to repay it could result in harm to the debtor’s person, property, or reputation through violence or other criminal means”—emphasis on the “or other means”—“[s]ection 892(a) is not categorically a crime of violence under § 16(b) because it does not invariably ‘by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’” Accardo, No. 09-15446, slip op. at 12.

As such, § 892(a) is not categorically a COV. It might, however, be a COV under the modified categorical approach. Because the BIA determined that § 892(a) was categorically a COV, the Court remanded with instructions that the BIA apply the modified categorical approach. Accardo, No. 09-15446, slip op. at 12-13.