Friday, September 21, 2007

Circuit Split on UUV: Tenth Circuit Holds It's Not an Aggravated Felony & Rejects Fifth Circuit Law to the Contrary

Those of you who handle a lot of illegal reentry cases know that the Fifth Circuit held, in United States v. Galvan-Rodriguez, that unauthorized use of a vehicle qualifies as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F), which includes "crimes of violence" as defined in 18 U.S.C. § 16. Galvan-Rodriguez held that UUV is a COV under § 16(b), which includes offenses that present a "substantial risk that physical force against the person or property of another may be used in the course of committing the offense[,]" reasoning that UUV carries a substantial risk that the vehicle will be damaged. You also know that the Fifth Circuit has persisted in this view, even though the Supreme Court rejected this type of result-oriented interpretation of § 16(b) in Leocal v. Ashcroft (discussed in greater detail here).

It's time to start taking this up. The Tenth Circuit recently held in United States v. Sanchez-Garcia* that a UUV statute similar to the one at issue in Galvan-Rodriguez does not qualify as an aggravated felony. Sanchez-Garcia expressly refused to follow Galvan-Rodriguez, properly recognizing that the Fifth Circuit's reasoning on this issue is contrary to Leocal. It concluded that, to qualify as a COV under § 16(b), an offense must carry a substantial probability that a person will avail himself of force, not that damage to persons or property may result. It also focused on the requirment that the risk of force be substantial. UUV doesn't necessarily entail that type of risk, so it's not an aggravated felony.

We've already had a conflict between Fifth Circuit case law and a decision of the Supreme Court. Now we also have a conflict with another court of appeals. That, combined with the fact that the issue involves a statutory COV definition, not just a guideline definition, and one that applies to both criminal and immigration cases, makes this a good candidate for a cert petition. So you should preserve this issue if it arises in any of your cases.

*United States v. Sanchez-Garcia, No. 06-2262, 2007 WL 2537883 (10th Cir. Sept. 6, 2007). You can read the Tenth Circuit Blog's coverage of the case here.

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