The U.S. Court of Appeals for the Tenth Circuit held that a felony conviction for violating Colorado’s menacing offense, Colo. Rev. Stat. § 18-3-206, is a crime of violence type of aggravated felony. Damaso-Mendoza v. Holder, No. 10-9579, slip op. (10th Cir. Aug. 9, 2011) (Kelly, Hartz, and Holmes, JJ.). Judge Hartz wrote the panel’s decision in a case that did not receive oral argument.
This case involved an LPR who pleaded guilty to menacing and was sentenced to eighteen months imprisonment. Damaso Mendoza, No. 10-9579, slip op. at 2. According to the Tenth Circuit, the menacing statute provides:
(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed: (a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or (b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.
Damaso-Mendoza, No. 10-9579, slip op. at 2 (quoting Colo. Rev. Stat. § 18-3-206).
The IJ concluded that Damaso-Mendoza’s conviction constituted a crime of violence. The BIA affirmed. Damaso Mendoza, No. 10-9579, slip op. at 3. As he did before the IJ and BIA, Damaso-Mendoza argued before the Tenth Circuit that the government failed to show whether he was convicted under 18-3-206(1)(a) or (1)(b). The Tenth Circuit found the BIA’s reasoning “persuasive.” Damaso-Mendoza, No. 10-9579, slip op. at 6.
(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.
Subsection (1)(a) of Colorado’s menacing offense satisfies 18 U.S.C. § 16(a) because it requires “plac[ing] the victim in fear of injury,” the Tenth Circuit explained. Damaso-Mendoza, No. 10-9579, slip op. at 9. This is true, the panel went on, even if a fake weapon is used rather than a real weapon as is possible for a conviction under the state statute. Damaso-Mendoza, No. 10-9579, slip op. at 9. “There is a ‘threatened use of physical force against the person or property of another,’ 18 U.S.C. § 16(a) (emphasis added), whether the object used by the perpetrator is a true deadly weapon or just looks like one.” Damaso-Mendoza, No. 10-9579, slip op. at 9-10.
The same analysis applies to subsection (1)(b). “Although a defendant convicted under § 206(1)(b) need only represent to the victim that he possesses a deadly weapon, the threat is the same as if the defendant had an actual or simulated deadly weapon, as required by § 206(a)(1).” Damaso-Mendoza, No. 10-9579, slip op. at 10.
Because the BIA only considered § 16(a) and because the Tenth Circuit panel concluded that menacing is a crime of violence under 18 U.S.C. § 16(a), the panel did not consider whether it was also a COV under § 16(b).