Nebraska False Imprisonment Conviction Not Categorically A Crime of Violence
U.S. v. Ruiz-Rodriguez, --- F.3d ----, 2007 WL 2193677 (10th Cir. Aug. 1, 2007)
In this reentry after deportation case, Defendant’s predicate felony conviction for first-degree false imprisonment (FI) in Nebraska did not meet the crime of violence definition in U.S.S.G. § 2L1.2 and his offense level was improperly enhanced. Because FI was not an enumerated felony, the enhancement would apply only if Neb law defined FI as having as an element the use, attempted use, or threatened use of physical force against the person of another.
The 10th first notes that the U.S.S.G. § 2L1.2 crime of violence definition is much narrower than the career offender statute and guideline definitions that additionally include “[or] involves conduct that presents a serious potential risk of physical injury to another.” Therefore, case law construing those provisions was not applicable. Using the Taylor categorical approach, the Neb statute can be violated in one of 3 manners, two of which involve the use of violence, and one of which involves only deception. Categorically it is not a crime of violence.
The 10th remands so that the government can now have the opportunity (seems like 2 bites--shouldn't probation have been required to do this the first time around?) to present other documents, such as charging documents, the plea agreement, etc., on the underlying Neb conviction, to determine under Shepard whether he was convicted of a crime of violence.
In this reentry after deportation case, Defendant’s predicate felony conviction for first-degree false imprisonment (FI) in Nebraska did not meet the crime of violence definition in U.S.S.G. § 2L1.2 and his offense level was improperly enhanced. Because FI was not an enumerated felony, the enhancement would apply only if Neb law defined FI as having as an element the use, attempted use, or threatened use of physical force against the person of another.
The 10th first notes that the U.S.S.G. § 2L1.2 crime of violence definition is much narrower than the career offender statute and guideline definitions that additionally include “[or] involves conduct that presents a serious potential risk of physical injury to another.” Therefore, case law construing those provisions was not applicable. Using the Taylor categorical approach, the Neb statute can be violated in one of 3 manners, two of which involve the use of violence, and one of which involves only deception. Categorically it is not a crime of violence.
The 10th remands so that the government can now have the opportunity (seems like 2 bites--shouldn't probation have been required to do this the first time around?) to present other documents, such as charging documents, the plea agreement, etc., on the underlying Neb conviction, to determine under Shepard whether he was convicted of a crime of violence.
posted by Anonymous at 9:48 AM
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