Friday, September 28, 2007

Pennsylvania Conviction for Simple Assault Does Not Constitute a Crime of Violence

In United States v. Otero, No. 05-3739 (3d Cir. September 12, 2007), the Court of Appeals for the Third held that a Pennsylvania conviction for simple assault [18 Pa. Cons.Stat.Ann. § 2701(a)] does not constitute a crime of violence for purposes of the 16-level enhancement contained in U.S.S.G. § 2L1.2(b)(1)(A), applicable to a defendant who was "previously deported ... after a conviction for a felony that is a crime of violence." The issue came before the Court in the context of a 2255 petition filed by Otero alleging that his counsel was ineffective for failing to object to the enhancement.

Otero pled guilty to one count of illegal re-entry into the United States by an alien previously deported following a conviction for an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The Presentence Report recommended a 16-level increase to his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on a prior Pennsylvania conviction for simple assault. Counsel did not object to the enhancement which the district court applied and sentenced Otero to 60 months of imprisonment. Otero did not file a direct appeal but rather filed a 2255 petition alleging that his counsel was ineffective for failing to object to the enhancement. The district court denied the petition. Applying the two-prong standard set forth in Strickland v. Washington, the Court of Appeals found counsel’s performance deficient and prejudicial and reversed the district court and remanded for re-sentencing.

The Court of Appeals recognized that in determining whether a conviction for simple assault as defined in Pennsylvania law constitutes a "crime of violence" for purposes of § 2L1.2(b)(1)(A), it must take a categorical approach under Taylor v. United States, 495 U.S. 595 (1990), meaning that it must look to the statute of conviction "to see whether the crimes therein described qualify as crimes of violence." While this issue was one of first impression in the context U.S.S.G. § 2L1.2, the Third Circuit previously held in Popal v. Gonzales, 416 F.3d 349 (3d Cir. 2005), that Pennsylvania simple assault was not a crime of violence under 18 U.S.C. § 16(a) (defining crime of violence) since the Pennsylvania statute requires only a mens rea of recklessness rather than indent. The Court adopted the reasoning of Popal as follows: "Although the issue in Popal was the removal of an alien for committing a crime of violence under § 16(a), its definition of ‘crime of violence’ is identical to the definition contained in § 2L1.2, that is, whether the offense ‘has as an element the use . . . of physical force against the person or property of another.’ Therefore we conclude that our holding in Popal applies to the relevant crime of violence defined under U.S.S.G. § 2L1.2."

Having determined that simple assault under Pennsylvania law is not a crime of violence supporting the 16-level enhancement, the Court turned to Otero’s ineffectiveness claim. The Court found counsel’s performance deficient in failing to object to the enhancement given that on its face the Pennsylvania simple assault statute does not require "the use of force" when "causing bodily injury." Moreover, the Court indicated that existing case law called into doubt the issue of whether simple assault qualified as a crime of violence. Lastly, the Court found prejudice to Otero in that his guideline range would have been 18 to 24 months in the absence of the enhancement.

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