Tuesday, April 08, 2014

U.S. v. Dominguez-Maroyoqui, No. 13-50066 (4-7-14) (Watford with Farris and N. Smith). 

This is an appeal from a 1326 sentence.  At sentencing, the defendant was found to have a crime of violence for a prior assault on a federal officer under 18 USC 111.  The subsection 111(a) is assault on a federal officer with a three year max.  Its elements though require only force, not physical force.  This differs from 111(b) which requires physical force.  In this case, the 9th reverses and remands for resentencing because it finds that 111(a) is not a crime of violence.  The 9th acknowledges that under United States v. Juvenile Female, 556 F.3d 943 (9th Cir. 2009), 111(b) is a crime of violence due to physical force, which is defined as violent force.  Under 111(a), the violence is not an element.  The prior does not meet the definitions of a crime of violence under 2L1.2.  If the offense is not a categorical crime of violence, then a modified categorical approach is not applicable.  Even if the statute was divisible, the elements do not qualify for a violent force.


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