Fives Again Hold that Causing Bodily Injury Doesn't Necessarily Involve "Use of Force" for Purposes of Various COV Definitions

United States v. Villegas-Hernandez, No. 05-40988 (5th Cir. Oct. 31, 2006) (King, Garwood, Jolly)

If you think you're hearing an echo, don't be alarmed. This is not the first time that the Fifth Circuit has held that an offense which is defined in terms of causing bodily injury does not necessarily require the type of violent, destructive physical force sufficient to satisfy the use-of-force prongs of various crime-of-violence definitions. See, e.g., United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc).

In this 1326 case, Villegas had a prior Texas conviction for simple assault under Tex. Penal Code §22.01(a)(1), which prohibits intentionally, knowingly, or recklessly causing bodily injury to another person. The probation officer recommended an 8-level aggravated felony enhancement under §2L1.2(b)(1)(C), apparently believing that the assault conviction satisfied the crime-of-violence definition found in 18 U.S.C. § 16 (and incorporated by reference in 8 U.S.C. § 1101(a)(43)(F)). The district court adopted that recommendation, over Villegas's objection, and sentenced Villegas within the range incorporating the 8-level enhancement.

The Fifth Circuit vacated the sentence. In an exhaustively detailed 22-page opinion, the court again explains that the "use of force" language found in various crime-of-violence definitions (here 18 U.S.C. § 16(a) and U.S.S.G. §2L1.2, comment. (n.1(B)(iii)) requires destructive or violent physical force, and that causing bodily injury to another person does not necessarily require the use of any physical force at all.