What’s a Crime of Violence for an Enhanced Federal Sentence?

In federal court, sentencing follows a methodical calculation under the United States Sentencing Guidelines.  There is always some uncertainty over how a defendant’s prior state court conviction should be classified and then how it affects sentencing enhancements.  Sometimes, the results can be counterintuitive.

The 2013 case of Marco Hernandez-Lara epitomized this issue.  Mr. Hernandez-Lara was convicted of illegal reentry to the United States under 8 U.S.C. § 1326.  Years before, in 2009, he was convicted of violating Penal Code § 459.  Under U.S.S.G. § 2L1.2(b)(1)(C), there are eight-levels of enhancements for someone convicted of illegal reentry if “the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.”
 
Section 2L1.2 states that an “aggravated felony” is defined by 8 U.S.C. § 1101(a)(43), which includes multiple offenses.  One of these offenses is a “crime of violence (as defined in Section 16 of Title 18).” 8 U.S.C. § 1101(a)(43)(f).  In the original sentencing of Mr. Hernandez-Lara, the Assistant U.S. Attorney assigned to the case argued that commercial burglary, Penal Code § 459, qualified as a “crime of violence.”  “A crime of violence” under § 16(b) is defined as an “offense that is a felony and that, by its nature, involves a substantial risk that physical force against person or property of another may be used in the course of committing the offense.”
 
U.S. District Court judge Edward J. Davila disagreed and then sentenced Hernandez-Lara to 24 months of incarceration.

The U.S. Attorney’s then filed its appeal in the United States Court of Appeals for the Ninth Circuit.  After the appeal was filed, a decision was reached in Dimaya v. Lynch (9th Cir. 2015) 803 F.3d 110.  In Dimaya, the federal court ruled that the definition of a crime of violence under 18 U.S.C. § 16(b) is unconstitutionally vague.

In addition, after the appeal was filed, but before Dimaya was decided, the U.S. Supreme Court decided Johnson v United States (2015) 135 S.Ct. 2551.  Johnson held that language similar to § 16(b), the Armed Career Criminal Act’s so-called “residual clause” and its definition of a “violent felony” is unconstitutionally vague.  Johnson at 2557.
 
The “residual clause” defined a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Dimaya relied upon Johnson in its ruling, meaning the Ninth Circuit specifically endorsed and followed Johnson.  Consequently, the Court of Appeals affirmed the District Court’s sentencing, but for reasons that arose only after the sentencing took place.

We find this ruling good, as commercial burglary in the context within which we most often see it, is shoplifting or used to be shoplifting.  In contrast, residential burglary is far more serious and dangerous and certainly should be considered a violent felony, as there is risk of physical injury when a residence owner seeks to confront the burglar.

For more information about sentencing in federal court, please click on the following articles:
  1. Sentence Set Aside When Federal Judge Makes Mistake
  2. Sixth Amendment Right to Fair Trial Means Family Can Be in Court During Sentencing
  3. Underage DUI Is Not Similar to a Juvenile Offense for Sentencing in a Later Drug Case
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