In U.S. v. Savage, the Ninth Circuit held that a state escape conviction was a crime of violence for sentence enhancement purposes. Using a modified categorical approach, the Court found defendant’s allocution included an admission that he had escaped from a jail.
In U.S. v. Carson, the Ninth Circuit held that the offense of second degree assault, as defined by the state of Washington, was a crime of violence. Defendant’s previous conviction for that offense had been used as a sentence enhanced for his federal conviction. An element of the prior offense is that the defendant “knowingly inflict bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.” The Court held the prior conviction was properly considered to determine the defendant was eligible for career offender enhancement.
In my days as a staff attorney, we’d would have called this case a slam dunk.
In U.S. v. Gomex-Mendez, the Ninth Circuit held that the California offense of unlawful sexual intercourse with a minor under age 16 by a person over the age of 21 was properly considered to be “statutory rape,” a crime expressly considered to be a crime of violence for purposes of sentence of enhancement. The Court rejected the defendant’s argument that because California did not allow for the defense of a reasonable belief that the minor was over 16, the crime should not be considered statutory rape. The Court reasoned that a state crime need only include the elements of the generic offence to be considered for sentence enhancement purposes; possible defenses are not relevant to that inquiry.
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