United States v. Folkes, No. 09-3389-cr (2d Cir. September 29, 2010) (Newman, Hall, CJJ, Restani, JCIT) (per curiam)
A conceded plain error in applying the definition of “crime of violence” in the illegal reentry Guideline is the subject of the court’s most recent per curiam.
Before he was deported, Walford Folkes had been convicted in New York State of criminal possession of a weapon in the third degree and burglary in the third degree. When sentenced for his illegal reentry, received a sixteen-level enhancement for having reentered after sustaining a conviction for a crime of violence.
On appeal, the circuit vacated the sentence, holding that the enhancement did not apply. The illegal reentry guideline’s definition of “crime of violence” is unique. While it covers more or less the same enumerated categories of offenses as other such definitions – such as that in the career offender Guideline and the Armed Career Criminal Act – unlike those, it lacks a broad residual clause, along the lines of “any other offense that otherwise involves conduct that presents a serious risk of physical injury to another.” Rather, the Guideline’s catch-all only covers offenses that have “as an element” the use of force – or its attempt or threat – against another.
Thus, Folkes’ prior convictions are not for crimes of violence. First, burglary in the third degree in New York is not categorically a “crime of violence,” because the Guideline definition covers only the burglary of a dwelling, but the New York statute covers burglary of a “building,” including, obviously, non-dwelling buildings. And the offense is not covered by the Guideline’s catch-all, because third-degree burglary does not have a force element. Criminal possession of weapon in the third degree is likewise not a crime of violence because the state statute covers only simple possession.