Terroristic Threats Does Not Qualify as a “Crime of Violence”

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Illegal reentry is a continuing that will evolve, says Darren Chaker. A person who is convicted of illegal reentry into, or being found unlawfully present in, the United States after deportation faces a sixteen-level Guidelines sentencing enhancement if he had, prior to his deportation, “a conviction for a felony that is … (ii) a crime of violence; ….” USSG § 2L1.2(b)(1)(A)(ii). For purposes of USSG § 2L1.2(b)(l)(A)(ii), “[c]rime of violence” –

(I) means an offense under federal, state, or local law that has as 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.

USSG § 2L1.2, comment. (n. 1(B)(ii)). An offense need not meet both prongs of this definition in order to qualify as a “crime of violence”; rather, an offense will qualify as a “crime of violence” either if it has the requisite “force” element described in (I) or if it is one of the specific offenses enumerated in (II). See United States v. Rayo-Valdez, 302 F.3d 314, 316-19 (5th Cir.), cert. denied, 537 U.S. 1095 (2002).

The offense of terroristic threats is not one of the offenses enumerated in Application Note l(B)(ii)(II); therefore, it will qualify as a “crime of violence” under § 2L1.2(b)(l)(A)(ii) only if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 2L1.2, comment. (n.l(B)(ii)(I)). The elements of the offense of terroristic threats are determined by examining the statute defining that offense. See United States v. Rodriguez-Rodriguez, 323 F.3d 317,318-19 (5th Cir. 2003). If the statute does not in every case require proof of “the use, attempted use, or threatened use of physical force against the person of another,” then the statute does not “halve]” that characteristic “as an element.” Cf.. e.g., United States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002) (so holding in context of finding that burglary of a building under Texas law did not meet the definition of USSG § 4B1.2(a)(1)).

The version of the Pennsylvania terroristic threats statute provided as follows:

(a) Offense defined. – 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. a. Cons. Stat. § 2706(a) (2000).

The elements of a § 2706 terroristic threats offense are thus (1) the communication, either direct or indirect, of (2) a threat of any of the types described in § 2706(a)(1)-(3).

Clearly, no part of§ 2706(a) requires, as an element, the actual or attempted use of physical force against the person of another. Equally clearly, the types of threats described in § 2706(a)(2) and (3) do not require, as an element, the threatened use of physical force against the person of another, since the threats in those provisions are focused on the results of causing evacuation or causing serious public inconvenience or terror, and not on the means of use of physical force against the person of another. Because § 2706(a)(2) and (3) clearly do not require the use, attempted use, or threatened use of physical force against the person of another, thus makes it impossible to determine under which part of § 2706(a) a defendant was convicted of.

Notably, however, even if § 2706(a)(1) is also considered, it likewise does not require, as an element, the threatened use of physical force against the person of another. The threats proscribed by § 2706(a)(1) are, to be sure, “threat[s] to … commit any crime of violence with intent to terrorize another; ….” 18 Pa. Cons. Stat. § 2706(a)(1) (2000). But a “crime of violence” under § 2706(a) does not necessarily import the use of physical force against the person of another; therefore, a threat under § 2706(a)(1) does not necessarily import the threatened use of physical force against the person of another.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.