Tuesday, October 10, 2006

Deadly Conduct Under Tex. Penal Code § 22.05(b)(1) is a 16-Level Crime of Violence Under U.S.S.G. §2L1.2(b)(1)(A)(ii)

United States v. Hernandez-Rodriguez, No. 05-51429 (5th Cir. Oct. 10, 2006) (per curiam) (Jolly, Davis, Wiener)

Hernandez, who pled guilty to illegal reentry, had a prior Texas conviction for deadly conduct. He was convicted under subsection (b)(1) of the deadly conduct statute, Tex. Penal Code § 22.05, which provides that "[a] person commits an offense if he knowingly discharges a firearm at or in the direction of . . . one or more individuals[.]" The court held that the offense necessarily involves the threat of force against a person, even if the gun is fired in the general direction of another person rather than directly at him. Because the offense involves the threatend use of physical force it qualifies as a crime of violence for purposes of U.S.S.G. §2L1.2(b)(1)(A)(ii).

Note that there are other ways of committing deadly conduct under § 22.05 that may not necessarily require the use, attempted use, or threatened use of physical force against another person. (The court discusses one of them at pages 5 through 7 of the slip.) Note also that the issue may turn on which version of the deadly conduct statute is at issue. See slip op. at 5 n.1. So don't assume that all convictions for "deadly conduct" constitute crimes of violence.

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