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California Battery Conviction Not 2L1.2 Crime of Violence

By Shari Allison

U.S. v. Herrera, 2008 WL 2698644 (7/11/08) (unpub'd) - Although unpublished, this case deserves top billing because it's quite an achievement---a plain error reversal of a "crime of violence" § 2L1.2 16-level enhancement on rather esoteric grounds. The defendant was represented by CJA counsel Angela Arrellanes and Scott Davidson. The 10th held that the defendant's conviction for battery under California law was not a "crime of violence." First, the court engaged in a must-read discussion of when to apply the pure, and when to apply the modified, categorical approach. You apply the modified categorical approach, i.e., you can look at court documents, such as the indictment, etc., only when the statute in question can be divided into two or more separate element sets, e...continue to full post

Full post as published by Tenth Circuit Blog on July 15, 2008 (boomark / email).