Criminal Defense of Immigrants

(G)  Shooting.  At least two courts have held or suggested that discharge of a firearm at a building was a crime of violence under 18 U.S.C. § 16(b), for immigration purposes, where there was a risk that the building was occupied at the time of the offense.[517]  While some recent cases have held that shooting at a building was not a crime of violence for illegal re-entry sentencing purposes,[518] that particular sentencing definition of crime of violence does not include violence against property, whereas the aggravated felony crime of violence does.  See § 19.22, supra. 

[517] Quezada-Luna v. Gonzalez, 439 F.3d 403 (7th Cir. Mar. 3, 2006) (Illinois conviction of aggravated discharge of a firearm, in violation of 720 ILCS § 5/24-1.2(a)(1), is an aggravated felony crime of violence for immigration purposes, because the offense required discharge of firearm into a building with reasonable knowledge that building was occupied, and therefore involved substantial risk of physical force against the person or property of another).  Cf. United States v. Martinez-Martinez, 468 F.3d 604 (9th Cir. Nov. 14, 2006) (Arizona conviction of discharging firearm at a residence, in violation of A.R.S. § 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9th Cir. 2005) (California conviction of discharging a firearm at an “inhabited dwelling house,” one “currently being used for dwelling purposes, whether occupied or not,” in violation of Penal Code § 246, constituted a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii)).  See also United States v. Lopez-Torres, 443 F.3d 1182 (9th Cir. Apr. 25, 2006) (California conviction for shooting at an occupied motor vehicle under Penal Code § 246 is categorically a crime of violence for purposes of enhancement of illegal reentry sentence under USSG § 2L1.2).

[518] United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. May 4, 2005); United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005).  But see United States v. Hernandez-Rodriguez, 467 F.3d 492 (5th Cir. Oct. 10, 2006) (Texas conviction of “deadly conduct,” as defined in Tex. Penal Code § 22.05(b)(1) [knowingly discharge a firearm in the direction of a person] constitutes a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b), because the offense has an element the threatened use of physical force).