Monday, January 04, 2010

U.S. v. Laurico-Yeno, No. 09-50093 (1-1-4-10). This is another appellate definition of whether a state prior conviction is a categorical crime of violence in the context of a 1326 (illegal reentry after deportation) sentencing. The defendant received a +16 level increase for the state prior conviction of Inflicting Corporal Injury on Spouse/Cohabitant Partner in violation of California Penal Code 273.5. On appeal, the 9th (Molly, D.J., joined by Gould and Bea) analyzes the elements of 273.5, and finds that it penalizes intentional use of force that results in a traumatic condition. The 9th rejects defendant's argument that the offense also penalizes a mere battery or simple assault, as possibly indicated by state opinions. More is required, according to the panel, than hypothetical situations to take an offense outside of the generic definitions. If the state statute's greater breadth is not apparent from the language of the statute itself, the defendant must point to state court decisions that do in fact apply the statute more broadly. That was not done here. Theoretical possibilities alone will not take this offense outside the crime of violence definition.


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