Tuesday, April 19, 2005

US v. Cortez-Arias

The 9th ventures into the2L1.2(b) definitional thicket in deciding whether a state conviction forshooting at an inhabited dwelling is an aggravated felony. The 9thdisagreed with the district court's reasoning but affirmed the outcome thattaking shots at a house is a crime of violence. The district court hadreached that conclusion by looking at the guideline's definition of crimeof violence in 4B1.2, which is a career offender section. In Weinert , 1F.3d 889 (9th Cir. 1993)(per curiam), the 9th held that shooting at aninhabited dwelling, even with no one in it, could be a crime of violenceunder the career offender provision because it might present a serious riskof force against another. Here, in the 2L1.2 definition, the threat ofviolence was not in the serious risk of force, but in the actual threat byhaving a house riddled with bullet holes, and thus was physical forceagainst another.


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