Wednesday, November 07, 2007

TX Injury to Child by Act is 18 U.S.C. § 16(b) COV, Because Of Substantial Risk Physical Force Against Person Will Be Used In Course of Committing It

Perez-Munoz v. Keisler, No. 06-60440 (5th Cir. Nov. 6, 2007) (Jolly, Davis, Wiener)

The Texas Penal Code has an offense called "Injury to a Child," which is defined as intentionally, knowingly, or recklessly causing bodily injury to a child, either by act or omission. In United States v. Gracia-Cantu, the Fifth Circuit held that injury by omission is not a "crime of violence" under 18 U.S.C. § 16(b), which includes felony offenses that by their nature "involve[] a substantial risk that physical force against the person . . . of another may be used in the course of committing the offense." Gracia-Cantu reasoned that because injury by omission can be committed by withholding food or medical care from a child, it does not necessarily involve a substantial risk of the use of physical force in order to commit the offense.

Perez-Munoz addresses the question Gracia-Cantu didn't: is injury by act, rather than by omission, a COV under § 16(b)? It answers that question "yes," relying on dubious reasoning.

Perez argued that injury by act can be committed by intentional acts that don't necessarily involve a substantial risk of physical force, such as by poisoning a child's food or drink. The court didn't disagree, but held that such a possibility is beside the point. Rather than relying on cases interpreting § 16(b)'s "substantial risk that physical force against [another] person . . . may be used in the course of committing the offense," the court cited cases interpreting the "serious potential risk of physical injury to another" language found in the ACCA's "violent felony" definition and guideline §4B1.2's "crime of violence" definition, including the Supreme Court's decision last term in James v. United States. From those cases, the court concluded that
[e]very intentional act causing injury to a child need not be violent for a violation of this part of the pared-down statute to be a crime of violence by its nature. As the Supreme Court stated in James: “[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James, 127 S. Ct. at 1597 (emphasis added).

The court also said, without citing any authority, that
[a]lthough it may be possible to commit this offense by intentional act without the use of physical force (such as by placing poison in a child’s food or drink), this is not the ordinary, usual way the crime is committed. The crime, when committed by an act, is usually committed with the use of some force, or at least through conduct that presents the substantial risk that force may be used.

There are a couple of problems with the court's reasoning. First, it comes very close to eliding the critical difference between the § 16(b) risk-of-force language and the ACCA's and guideline §4B1.2's risk-of-injury language. One focuses on acts, while the other focuses on results, and that distinction can make all the difference in the world. Prior Fifth Circuit cases have avoided conflating the two types of risk. See, e.g., United States v. Houston, 364 F.3d 243, 247 n.5 (5th Cir. 2004).

Second, the risk-of-injury language does not exist in a vacuum in the ACCA or guideline §4B1.2. Instead, it's part of an "otherwise clause" that arguably should be read to include only offenses that entail a risk similar to that presented by specifically enumerated offenses found in those definitions (such as arson or extortion). Section 16(b), unlike §4B1.2 or the ACCA, does not list any specific COV's, so its risk clause lacks the same context found in those other two definitions. Thus, it's far from clear that ACCA or §4B1.2 cases are equally applicable to § 16(b) on the risk question.

Finally, keep in mind that there's a good chance the Supreme Court will provide some further guidance on the meaning of the ACCA's "otherwise clause" when it decides Begay v. United States later this term. The Court's decision in Begay may impact the shelf life of Perez-Munoz.

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