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 [...]
BIA: RI solicitation to commit assault is crime of violence
The BIA held that a conviction for violating Rhode Island’s prohibition against criminal solicitation was a crime of violence where the crime solicited was assault. Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Pauley, Greer, and Mullane, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR who was convicted of criminal solicitation, R.I. Gen. L. § 11-1-9, after pleading nolo contendere. The record of conviction explained that Guerrero was charged with solicitation to commit the crime of assault. Matter of Guerrero, 25 I&N Dec. at 631. Several [...]
BIA: Cal assault with intent to commit felony is crime of violence aggravated felony
In a published decision, the BIA held that California’s assault with intent to commit a felony offense constitutes a crime of violence type of aggravated felony. Matter of Martinez, 25 I&N Dec. 571 (BIA 2011) (Grant, Miller, and Malphrus, Board Members). Board Member Grant wrote the panel’s decision. This case involves an LPR who was convicted by plea of violating Cal. Penal Code § 220. According to the BIA, at the time of his conviction (in 1994) § 220 provided: Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section [...]
SCOTUS: Vehicle flight is violent felony under ACCA
It took less than twenty-four hours before my brother Carlos Moctezuma García, one-half (along with my other brother Raúl) of García & García Law and patrocinador of this blog, fielded a question about whether last week’s Supreme Court decision holding that vehicle flight constitutes a violent felony under the Armed Career Criminal Act (ACCA) applies to the crime of violence type of aggravated felony. See Sykes v. United States, No. 09-11311, slip op. (June 9, 2011) (Kennedy wrote for Roberts, Breyer, Alito, Sotomayor; Thomas concurring in the judgment; Scalia dissented; Kagan dissented [...]
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 [...]
Fed Defenders: Crimes of violence cheat sheet
I recently came across a wonderful resource put together by the Office of the Federal Public Defenders, Western District of Texas—a state-by-state compilation of specific criminal offenses (click on the document titled "Crimes of Violence List") that the Fifth Circuit (with a few additions from other courts) has determined to be a crime of violence or not. Although created to help defense attorneys figure out potential sentencing enhancements facing defendants, it might prove to be a useful starting point for research on COVs arising in a non-sentencing immigration context. [...]
BIA: Jail time imposed after probation violation counts as original sentence; willful infliction of corporal injury of spouse is crime of violence
In a published decision released last week, the BIA held that a term of imprisonment imposed after a probation violation is considered part of the penalty imposed for the original underlying conviction rather than a penalty imposed for a separate offense. Matter of Perez Ramirez, 25 I&N Dec. 203, 205 (BIA 2010) (Filppu, Cole, and Pauley). The BIA also held that California’s willful infliction of corporal injury on a spouse, Cal. Penal Code § 273.5(a), is a crime of violence type of aggravated felony. Matter of Perez Ramirez, 25 I&N Dec. at 208. Board Member Pauley wrote the opinion for [...]
SCOTUS: “Physical force” defined as violent force in statute identical to “crime of violence” definition; affirms Leocal’s definition of COV aggravated felony
The U.S. Supreme Court held this week that the phrase “physical force” means “violent force” for purposes of a statute that uses the exact language as the statutory definition of “crime of violence.” Johnson v. United States, No. 08-6925, slip op. (March 2, 2010) (Scalia, Roberts, Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor). Scalia wrote for the majority; Alito dissented and was joined by Thomas. This case involved a conviction for Florida’s felony offense of battery, Fla. Stat. § 784.03(1)(a), (2). The question before the Court was whether the battery conviction constitutes a [...]