CA "Willful Infliction of Corporal Injury" a §2L1.2 16-Level COV, But CA "Making Criminal Threats" Not

United States v. Cruz-Rodriguez, No. 09-40500 (5th Cir. Nov. 2, 2010) (per curiam) (King, Benavides, Elrod)

And now for something completely different: a §2L1.2 16-level COV case.

Cruz got hooked with the enhancement on the basis of two Golden State priors:

• Cal. Penal Code § 273.5—willful infliction of corporal injury
• Cal. Penal Code § 422—making criminal threats

Neither is an enumerated COV, so the question was whether either of them "has as an element the use, attempted use, or threatened use of physical force against the person of another."

One does, one doesn't:

With respect to the willful infliction of corporal injury offense, we previously rejected this argument in an unpublished opinion, holding that California Penal Code § 237.5(a) “penalizes the intentional use of force that results in a traumatic condition.” We find this reasoning persuasive. Moreover, our previous decision is consistent with the Ninth Circuit’s analysis of § 237.5(a). Accordingly, we hold that the offense of willful infliction of corporal injury is a crime of violence for the purpose of sentence adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that “the use, attempted use, or threatened use of physical force against the person of another” is not an element of California Penal Code § 2L1.2(b)(1)(A)(ii) [should be § 422] “because it is possible under [California] law for the State to obtain a conviction under . . . the terroristic threats statute without proof of the threatened use of physical force against another person . . . .” We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

(cites omitted).