Wednesday, July 11, 2007

Henry: NY Gun Possession With Intent To Use Again Another Is A Crime of Violence

In Henry v. Gonzales, No. 05-3064 (3d Cir. July 11, 2007), the Third Circuit grappled with whether a particular New York crime should be considered a crime of violence. The immigration judge said no, but the BIA on appeal said yes. The Third Circuit agreed with the BIA, which doomed Mr. Henry's attempt to avoid deportation.

The term "crime of violence" is critical in this case because the bloated category of what is today considered an aggravated felony includes any crime of violence where the sentence includes a year or more of imprisonment. What, the case asked, is a crime of violence?

Under section 16(b), a crime of violence requires more than just accidental or negligent conduct against someone else. In 2004, the US Supreme Court emphasized it can't be merely a reckless state of mind, either. There must be a substantial risk that the person will intentionally use force during the crime.

Looking at the entire category of crimes covered by the New York criminal statute, the Third Circuit concluded that possessing a loaded firearm with intent to use it unlawfully against someone else does involve a substantial risk of intentionally using physical force during a crime -- therefore, it is a crime of violence. The Third Circuit concluded that intent to use a dangerous weapon means there is a substantial risk of using physical force during the crime.

The Third Circuit said the intent to use the firearm meant the risk existed even though the following crime had not yet started to happen. This is like how in burglary, a classic crime of violence, unlawfully being in a place with intent to commit a crime means there is a substantial risk the burglar will use force if confronted. It doesn't matter whether the burglar actually is ultimately confronted. So this is different from a crime defined merely as just possessing a pipe bomb because there is no risk in merely possessing a pipe bomb. United States v. Hull, 456 F.3d 133 (3d Cir. 2006). The key difference is that the NY criminal statute (NYPL 265.03) requires proof the person had the intention to use the firearm against someone else.


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