Using a Deadly Weapon to Cause Bodily Harm Involves, at the Least, the Threatened Use of Physical Force

United States v. Velasco, No. 05-10451 (5th Cir. Sept. 26, 2006) (King, Garwood, Jolly)

Another case involving the application of the 16-level "crime of violence" enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). In this case, the defendant had a prior Illinois conviction for aggravated battery. There are a number of different ways to commit that offense, so the opinion spends a good deal of time nailing down exactly which portion of the Illinois statute underlay the conviction.

Ultimately, the court determines that Velasco had been convicted under 720 Ill. Comp. Stat. 5/12-4(b)(1), which "provides that '[i]n committing a battery, a person commits aggravated battery if he or she: (1) uses a deadly weapon other than by the discharge of a firearm." Slip op at 11. Sounds an awful lot like generic aggravated assault, at least as construed in United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. 2006). And the court agrees, in lengthy footnote 3 that concludes: "the comparison [between 5/12-4(b)(1) and Model Penal Code § 211.1(2)] reveals that the two definitions are identical in regard to the required elements of mens rea, causation of bodily harm, and use of a deadly weapon."

However, the court did not resolve the case on that basis, apparently because 1) the district court had concluded that the Illinois offense has an element of physical force, and 2) the Government didn't argue that Velasco's prior offense constituted an enumerated offense. Instead, the court held that 5/12-4(b)(1) qualifes as a crime of violence under the force-element prong of the 16-level COV defintion. Here's the analysis:

There is only one means of conviction under § 12-4(b)(1), which is to prove that the defendant actually “used” a deadly weapon. Under Illinois law, a deadly weapon is “an instrument that is used or may be used for the purpose of an offense and is capable of producing death.” Illinois v. Blanks, 845 N.E.2d 1, 12 (Ill. App. Ct. 2005). Accordingly, in order to convict a [sic] Velasco of aggravated battery under § 12-4(b)(1), the government was required to prove that Velasco “used” a deadly weapon for the purpose of the offense of battery, which in this case, was to cause bodily harm.

We conclude that § 12-4(b)(1) does indeed require proof of the element of the use of physical force against the person of another. In making this determination we note that it is critical that the statute requires the actual “use” of the weapon to commit the offense. In United States v. Diaz-Diaz, we held that a criminal offense involving the mere possession of a deadly weapon is not a “crime of violence” because the offense required nothing more than actually carrying a weapon. 327 F.3d 410, 414 (5th Cir. 2003) (holding that the crime of “knowing possession” of a short-barrel shotgun was complete without the use of any physical force against the person or the property of another). We distinguish, however, the “use” of a deadly weapon from mere possession in regard to the relationship between the “use” of a weapon and physical force. In order to “use” a weapon to cause bodily harm, one must, at the very least, threaten the use of physical force.

Slip op. at 10-12 (emphasis added).

Long-time COV watchers will ask, "Wait a minute, hasn't the Fifth Circuit held at least twice in unpublished opinions that Illinois aggravated battery isn't a crime of violence?" Yes. Well, sort-of. Velasco declined to follow those cases because "[i]n both cases the records on appeal did not contain the indictments for the Illinois convictions and the court was unable to discern under which of the disjunctive statutory elements the defendants were charged and convicted." Slip op. at 9.

For what it's worth, I think the court's holding is at least debatable. There are conceivably ways in which a person could use a deadly weapon to cause bodily injury without actually using, attempting to use, or threatening to use physical force. Rigging a spring-gun that will discharge when someone opens a door, for example. If someone opens the door and gets shot, then perpetrator has used force in a physics or engineering sense (the force required to engineer the trap), but that's not the type of violent physical force necessary for purposes of the crime-of-violence definition.