Terrorist Threats Do Not Qualify as a “Crime of Violence” Under USSG § 2L1.2?

By Legal Researcher Darren Chaker

In the context of federal sentencing guidelines, the classification of an offense as a “crime of violence” can significantly impact the penalties imposed on a defendant. Under USSG § 2L1.2(b)(1)(A)(ii), a conviction for illegal reentry into the United States after deportation can result in a 16-level sentencing enhancement if the defendant has a prior felony conviction that qualifies as a “crime of violence.” This article examines whether a terrorist threat qualifies as a “crime of violence” under the sentencing guidelines, with a focus on the legal framework, key case law, and statutory interpretation.

Legal Framework: USSG § 2L1.2(b)(1)(A)(ii)

USSG § 2L1.2(b)(1)(A)(ii) provides:

“If the defendant previously was deported, or unlawfully remained in the United States, after a conviction for a felony that is … (ii) a crime of violence, increase by 16 levels.”

The term “crime of violence” is defined in the commentary to USSG § 2L1.2 as:

“(I) an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another; and (II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.”

An offense qualifies as a “crime of violence” if it meets either prong of this definition. See United States v. Rayo-Valdez, 302 F.3d 314, 316-19 (5th Cir. 2002).

Does a Terrorist Threat Qualify as a “Crime of Violence”?

The question of whether a terrorist threat qualifies as a “crime of violence” under USSG § 2L1.2(b)(1)(A)(ii) depends on whether the offense has as an element the “use, attempted use, or threatened use of physical force against the person of another.” To determine this, courts examine the statute defining the offense. See United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318-19 (5th Cir. 2003).

Pennsylvania Terroristic Threats Statute

For example, the Pennsylvania terroristic threats statute, 18 Pa. Cons. Stat. § 2706(a), provides:

“A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another; (2) cause evacuation of a building, place of assembly, or facility of public transportation; or (3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.”

The elements of a terroristic threats offense under this statute are:

1. The communication, either direct or indirect, of
2. A threat of any of the types described in § 2706(a)(1)-(3).

Notably, § 2706(a) does not require, as an element, the actual or attempted use of physical force against the person of another. Even under § 2706(a)(1), which involves threats to commit a “crime of violence,” the statute does not necessarily import the threatened use of physical force against another person. See United States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002).

Case Law Analysis

Courts have consistently held that offenses must meet the specific elements outlined in USSG § 2L1.2 to qualify as a “crime of violence.” Below are key cases that address this issue:

1. United States v. Rayo-Valdez, 302 F.3d 314 (5th Cir. 2002)

In United States v. Rayo-Valdez, the Fifth Circuit held that an offense qualifies as a “crime of violence” if it meets either prong of the definition in USSG § 2L1.2. The court emphasized that the offense must have as an element the use, attempted use, or threatened use of physical force against another person.

2. United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. 2003)

In United States v. Rodriguez-Rodriguez, the court reiterated that the elements of the offense must be examined to determine whether it qualifies as a “crime of violence.” The court found that the statute at issue did not meet the definition because it did not require the use or threatened use of physical force.

3. United States v. Turner, 305 F.3d 349 (5th Cir. 2002)

In United States v. Turner, the court held that burglary of a building under Texas law did not qualify as a “crime of violence” because it did not have as an element the use, attempted use, or threatened use of physical force against another person.

Conclusion

Based on the statutory language and case law, a terrorist threat under statutes like 18 Pa. Cons. Stat. § 2706(a) does not qualify as a “crime of violence” under USSG § 2L1.2(b)(1)(A)(ii). The offense lacks the requisite element of the use, attempted use, or threatened use of physical force against another person. This conclusion is consistent with the reasoning in cases like United States v. Rayo-Valdez, United States v. Rodriguez-Rodriguez, and United States v. Turner.

For attorneys representing clients in cases involving illegal reentry and prior convictions, understanding the nuances of USSG § 2L1.2 is critical. Properly arguing whether a prior conviction qualifies as a “crime of violence” can significantly impact the sentencing outcome.

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