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

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.