Saturday, August 29th, 2009


The court’s latest per curiam (“PC”) opinion deals with the narrow definition of “crime of violence” in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms “with the intent to use the same unlawfully against another” is not a crime of violence under that section. The 2L1.2 definition of “crime of violence” includes certain enumerated offenses, not implicated here, as well as any other offense that “has an an element the use, attempted use, or threatened use of physical force gainst the person of another.” Since the New York statute prohibits the intended use of force, but not the attempted use of force, it is not covered by this definition. And, since the “categorial approach” to recidivism statutes prohibits looking back at the defendant’s actual conduct, it is irrelevant that Gamez actually shot someone – twice.

It should be noted that this decision is confined to its narrow context. The 2L1.2 “crime-of-violence” definition is pretty much the only one out there that does not have an “otherwise involves” catchall. The circuit long ago held that the same New York statute is a crime of violence under this broader definition.

It is perhaps more important, then, that the court also held that being sentenced under a “significantly overstated advisory Guidelines range” constitutes plain error.

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