Reckless NY Aggravated Criminal Contempt Conviction is Aggravated Felony

United States v. Sanchez-Espinal, No. 13-40714 (5th Cir. Aug. 6, 2014) (Stewart, Wiener, Costa)

Sanchez-Espinal challenged the 8-level enhancement imposed on his illegal reentry conviction.  The district court found that his conviction in New York for Aggravated Criminal Contempt, N.Y. Penal Law § 215.52(1), was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F).  Section 16(b) provides that a felony conviction is a crime of violence if, “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

“A person is guilty of aggravated criminal contempt when . . . in violation of a duly served order of protection . . . he or she intentionally or recklessly causes physical injury or serious physical injury to a person for whose protection such order was issued.”  N.Y. Penal Law § 215.52(1).  Sanchez-Espinal’s charging document charged his mens rea as both intentionally and recklessly.

The panel sets the stage by emphasizing that a § 16(b) crime of violence does not require the risk of the use of physical force to arise in every instance; it just requires a strong probability that the application of physical force during the commission of the crime will occur.  The panel reasons that, even if committed recklessly, the defendant must have “knowingly flout[ed] a court order to violate § 215.52(1)” thereby “increas[ing] the likelihood of force in the commission of aggravated criminal contempt.”  A protective order is issued in New York after a victim’s complaint or the commission of a “family offense,” which refers to many offenses including harassment and strangulation.  Therefore, this offense “naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing [the] offense.”  See Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).  (Although, one can easily imagine a decision reaching the opposite result and stating that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of [violating a protective order] and causing [serious physical] injury.”)

Sanchez-Espinal also argued on appeal that he was actually convicted of Criminal Contempt, N.Y. Penal Law § 215.51, and that the Government had not presented sufficient evidence to prove that he was convicted of § 215.52 or to narrow his conviction to § 215.52(1).  Since he did not preserve these issues below, the panel addresses these arguments on plain error review.  The panel finds that the state court felony complaint, the state court information, and the state court Uniform Sentence & Commitment supported a finding that he was convicted of § 215.52.  Since the language of the information closely tracked the language of § 215.52(1), the panel finds the district court did not err in finding that he was charged and convicted of violating § 215.52(1).