PA Terroristic Threat Not Categorically a 2L1.2 COV Because It Doesn't Necessarily Require Physical Force

United States v. Ortiz-Gomez, No. 08-40292 (5th Cir. Mar. 10, 2008) (Davis, Smith, Owen)

The Pennsylvania statute concerning "terroristic threats" criminalizes a variety of vexatious acts, including threats to commit a "crime of violence." Although Pennsylvania law isn't entirely clear on what constitutes a "crime of violence," the term includes arson. And arson, as defined in Pennsylvania, doesn't necessarily require the use, attempted use, or threatened use of physical force against another person. Therefore, holds Ortiz-Gomez, a Pennsylvania conviction for threatening to commit an unspecified "crime of violence" does not constitute a COV under the force-element prong of guideline §2L1.2's 16-level COV definition.

Note that the result may be different if the Pennsylvania charging instrument alleges a particular state COV and that COV includes a physical-force-against-a-person element.