It makes sense to give someone a longer sentence if they’re a violent person. And it makes sense to think that if someone has a prior conviction for a violent crime they are more likely to be a violent person. But it is massively difficult to turn that into a rule that can apply to the thousands of federal criminal cases across the country.
As a result, criminal history calculations may be the most technical part of federal sentencing practice. Yet scores of years hang on these technicalities.
Whether a person has a prior conviction, or convictions, for a “crime of violence” will determine how much time he will spend in prison – probably more than any other single fact about him – if that person has been convicted of a drug distribution offense, possessing a gun after being convicted of a felony, or reentering the United States unlawfully after a conviction for a felony.
The tax on being a violent person is high.
The Definition of a “Crime of Violence”
What counts as a “crime of violence” is, then, very important.
Generally, a crime of violence is any crime that involves the use of force, or the threatened use of force. See 18 U.S.C. S 924(e)(2)(B). Hitting someone, or committing assault, involves the use of force, so it counts as a crime of violence. Moreover, robbing a bank by threatening to shoot someone counts as a crime of violence because it involves the threatened use of force.
Also, some crimes are simply defined as violent, like arson, extortion, or burglary.
States Define Crimes Differently
Clear enough – federal law has now given us a definition of “crime of violence.”* The problem is that the vast majority of criminal convictions are state convictions. To take the example at issue in the Ninth Circuit’s recent opinion in United States v. Aguila, consider burglary.
Some states allow burglary to be charged if a person unlawfully enters a car, or a boat, to steal something. Other states don’t. If Maryland counts unlawful entry on a boat as burglary, but Iowa doesn’t, it’s creepy for someone in Maryland to be counted as a violent offender if someone in Iowa isn’t when they’ve committed the exact same act.
To remedy that, the Supreme Court adopted a generic definition of burglary – defining it as an unlawful entry into a building with the intent to commit a crime.**
States Still Define Crimes Their Own Ways
Great. That’s clear. One small problem remains – states do not use the generic federal definition when they convict people.
Imagine a man – let’s call him “Mr. Aguila” – is convicted of residential burglary in California. Residential burglary is defined, under California law, as entering a building with the intent to commit a crime.
That is close, but not quite, the general federal definition allowed by the Supreme Court – to count under the Court’s definition, it has to be an illegal entry into a building with the intent to commit a crime.
Some California burglaries are crimes of violence, and some aren’t. How do we know which Mr. Aguila has committed?
The Old Rule In The Ninth Circuit
For a time, in the Ninth Circuit, the rule was that if a person was convicted of a California burglary, or any other offense that did not contain all of the elements of the generic federal offense, then that conviction did not count as a crime of violence because the court “can never find that a jury was actually required to find all the elements of” the crime that would satisfy the federal definition. The case was called United States v. Navarro-Lopez. The emphasis in that approach is on what the jury found. If the jury isn’t given the opportunity to conclude that the guy committed a crime of violence, as the federal law defines it, then you can’t use the conviction as a prior crime of violence at sentencing.
The New Rule In the Ninth Circuit
In Mr. Aguilar’s case, the Ninth Circuit rejected the approach in Navarro-Lopez. Instead, the court of appeals held that the sentencing judge should look at other documents relating to the conviction – such as any facts admitted during a plea hearing, or in a plea agreement, or based on what a jury found. The set of documents is relatively narrow, and set out in the Supreme Court’s decision in Shepard v. United States.
The Ninth Circuit expressed confidence that it would only rely on these documents when they give the court certainty that the person committed the crime of violence. I now express a lack of confidence that this will be the case.
* There are a few different definitions of “crime of violence” in the different federal statutes and sentencing guidelines that matter. Also, sometimes the term that is used is not “crime of violence” but, rather, “violent crime.” Be mindful of that when you wonder why the suicide rate for attorneys is higher than for nonlawyers.
** Yes, readers who are criminal defense lawyers, this isn’t the exact definition the Supreme Court used. It’s close enough for the broader point of the discussion. Readers are advised not to read this blog as a legal brief.