 NEWS FROM THE COURTS
Dalton v. Ashcroft, Second Circuit
In this case, the court found that a felony DWI conviction from New York was not a deportable offense.
Thomas Dalton, a native of Canada, had been a permanent resident of the US since 1958, when he was one year old. In 1998 in New York he pled guilty to a driving while intoxicated offense, and because of two prior convictions for DWI, the 1998 conviction was a felony, and punishable by 18 to 54 months in prison. In 1999, when Dalton was in prison, the INS began deportation proceedings against him. According to the INS, the DWI offense was an aggravated felony. An immigration judge ordered him deported and the ruling was affirmed by the Board of Immigration Appeals, which found that the felony DWI was a crime of violence and thus an aggravated felony. Dalton appealed to the Second Circuit.
Whether an offense is a crime of violence is judged by the nature of the offense, that is, by the conduct described in the statute, and without reference to the individual circumstances of the offense. Under this standard of review, the court found that the New York DWI statute at issue easily encompassed actions that were not crimes of violence. The New York statute provides that “no person shall operate a motor vehicle while in an intoxicated condition.” This statute, the court found, encompassed a wide range of actions, not just driving a vehicle. Indeed, it has been used to convict people who were sleeping in a car while drunk of a DWI, and to convict people of sitting in an inoperable car. Under these circumstances, the court found that the statute allowed for convictions even when there was no risk that injury or violence could occur.
The court found the INS’s arguments that the increased risk of an accident that is created by a drunk driver, while a reality, did not make the offense an aggravated felony. To be a crime of violence, the offense must involve the use of physical force. While an accident may be the result of physical force, that force is not used in the commission of the offense, as required by the federal statute. Therefore, the court ordered the deportation proceedings dropped.
The opinion is available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=004123v2&exact=1.
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US v. Palomino-Rivera, Seventh Circuit
In this case, the court reversed the determination of the trial court that the defendant’s sentence for unlawfully reentering the US following deportation should be decreased because the felony underlying the deportation was not serious.
Roberto Palomino-Rivera, a citizen of Peru, was arrested in 2000 on charges of theft and disorderly conduct. He was in the US without authorization at the time, and was therefore turned over to the INS. He was indicted on one count of being unlawfully present in the US following deportation for an aggravated felony. He was found guilty and sentenced to 24 months in prison. This sentence was based on a reduction by the trial judge, who found that his aggravated felony – theft – should not lead to as long a prison term as more violent felonies, such as murder or rape. The US appealed.
For federal offenses, there are extensive Sentencing Guidelines that designate the proper sentence based on a number of factors. While these guidelines have removed much of a trial judge’s discretion, the trial judge can still depart from the guidelines if there are factors that have not been considered by the guidelines. The trial judge found Palomino-Rivera’s theft offense qualified for a departure. The Seventh Circuit disagreed.
According to the Seventh Circuit, differing types of aggravated felonies are considered in the application notes to the sentencing guidelines, and there was nothing in the facts of Palomino-Rivera’s case that was not fully considered in those notes. Therefore, it reversed the sentence and remanded for resentencing.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0723-Palomino.shtm
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