16-Level Enhancement for Colo. 1st-Degree Criminal Trespass Conviction Reversed

U.S. v. Ortuno-Caballero, 2006 WL 1785360 (6/29/06)(unpub'd) - The Court reversed a 16 level upward adjustment in a reentry sentence, holding that a Colorado conviction for attempted first degree criminal trespass was not for a crime of violence under § 2L1.2(b)(1)(A). Trespass is not burglary, which requires an intent to commit a separate crime, and "crime of violence" under § 2L1.2 must have an element of force, not just a risk that force would be used, as under 18 U.S.C. § 16. The Court noted that United States v. Venegas-Ornelas, 348 F.3d 1273 (10th Cir.2003), held only that first degree criminal trespass was a crime of violence, and hence an aggravated felony, only for purposes of the broader definition in 18 USC 16, and the definition of COV for purposes of the 16-level enhancement of USSG 2L1.2 was much narrower. In a concurrence, Judge O'Brien complains about all the irrational differences in definitions of a "crime of violence" in different contexts. If he could rewrite the law he would apply the broader definition in all cases.