Generic "Arson" Is Willful and Malicious Burning of Property; Doesn't Require Threat of Harm to a Person

United States v. Velez-Alderete, No. 08-20557 (5th Cir. June 2, 2009) (per curiam) (King, Garwood, Davis)

Various COV definitions include "arson" as an enumerated offense. Ever wondered what generic arson is? Wonder no longer. Velez-Alderete holds, as have other circuits, that "the generic, contemporary definition of arson involves a willful and malicious burning of property[,]" without any requirement that the burning threaten harm to a person. Velez-Alderete further holds that Texas's arson falls within that defintion:

Texas proscribes starting a fire “with intent to destroy or damage” various types of property ranging from structures and vegetation on open-space land to vehicles when the perpetrator knows that the vehicle is insured or when he is reckless concerning the safety of the property of another. All of these variations involve a willful and malicious burning of property.

At least 35 other states' arson statutes fit the bill, as well. Refer to the string cite in footnote 4 if you'd like to know which ones those are.

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.