Wednesday, September 12, 2007

Unlawful Use of Means of Transportation Not an Aggravated Felony

U.S. v. Sanchez-Garcia, --- F.3d ----, 2007 WL 2537883 (10th Cir. Sept. 6, 2007).

The 10th held that Arizona’s Unlawful Use of a Means of Transportation (UUMT) is not an aggravated felony (USSG § 2L1.2(b)(1)(C)) crime of violence (COV) under 18 U.S.C. § 16(b), remanding Defendant's case for re-sentencing on a guilty plea of re-entry after deportation. The parties agreed that the UUMT does not have as an element the use, attempted use, or threatened use of force and that, therefore, the issue was whether it fell within § 16(b) as involving a “substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Read this case for the analytical approach taken by the 10th. The court affirmed that under the Taylor categorical approach, the “substantial risk” of “physical force” must inhere in the elements of the offense and not in the specific conduct in which the defendant engaged. When addressing a Sec. 16(b) issue, however, at times the statute might be sufficiently ambiguous to require a review of charging documents to determine what different acts might be swept within the scope of the statute. Here, however, the UUMT was not ambiguous and addressed only one course of conduct. To establish a violation, the only elements which needed proving were that the D (1) knowingly took control (2) without authority (3) of another person's means of transportation.

The 10th outlined its position on the operative elements for a COV: “‘use of force”implies that intentional availment of force is required; “force” refers to destructive or violent force; and “substantial risk” requires a high probability that such force may be employed to carry out the offense itself. The 10th acknowledges that the UUMT encompasses inherently nonviolent conduct, such as borrowing a vehicle with the owner's permission and failing to return it on time. It declines to follow the 5th Circuit, which holds that a similar Texas statue is a COV. The 10th says that while there is some risk the crime would be committed with violence, it is not a substantial risk, and points to the fact that the UUMT can be violated, for example, by returning a rental car after it was due to be returned.