The United States Court of Appeals for the Fifth Circuit recently ruled in the case of United States v. Efren Villegas-Hernandez, an appeal from the U.S. District Court from the Southern District of Texas.  Defendant-Appellant Efren Villegas-Hernandez (Villegas-Hernandez) contends that the district court erred in applying an eight-level sentence enhancement because his prior Texas conviction for assault is not a "crime of violence" as defined for this purpose by the United States Sentencing Guidelines. The Appeals court agreed. Vacating Villegas-Hernandez sentence and remanding it to the lower court for resentencing.  

On October 25, 2004, Border Patrol agents found Villegas Hernandez in Cameron County, Texas and determined him to be a citizen of Mexico who had entered the U.S. illegally.  Villegas-Hernandez had been deported from the U.S. on May 13, 2003, after pleading guilty to assault in Texas state court.  

On February 23, 2005, Villegas-Hernandez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b) which proscribe knowingly and unlawfully being present in the U.S. after having been "denied admission, excluded, deported, or removed" following certain convictions.  After this plea, in sentencing defendant, the United States District Court for the Southern District of Texas, Hilda D. Tagle, J., applied eight-level enhancement and sentenced Villegas-Hernandez to 21 months of imprisonment and three years of supervised release. Villegas-Hernandez appealed.  

The Court of Appeals, Garwood, Circuit judge, held that:  

(1) defendant's prior Texas assault conviction was not one for "crime of violence" under either statutory definition and therefore was not an "aggravated felony" for enhancement purposes under United States Sentencing Guidelines;
(2) error in applying eight-level enhancement for aggravated felony conviction was prejudicial; and
(3) "felony" and "aggravated felony" enhancement provisions of Immigration and Nationality Act (INA) provision governing reentry of removed aliens were constitution  

The appeals court analyzed the definition of "crime of violence" itself. It noted that under 18 U.S.C.A. § 16(a), when the court decides whether a prior conviction is a "crime of violence" because it has as an element the use of force, the court should use a categorical approachand analyze the offense's statutory definition instead of the defendant's underlying conduct.  

Under this statute, Villegas-Hernandez’ prior conviction under Texas assault statute was not a "crime of violence" because it had as an element the use of force. Bodily injury required for that offense could be sustained without proof of the use of "destructive or violent" force.  Under categorical approach, conduct underlying an offense may not be employed to meet statutory definition of "crime of violence" as one involving the use of force.  

Because defendant's prior Texas assault conviction was not for a "crime of violence" under either statutory definition, it was not a conviction for an "aggravated felony" justifying eight-level increase in base offense level for crime of unlawfully entering or remaining in United States after deportation.  Sentencing court's error in applying eight-level enhancement for prior aggravated felony where prior conviction was not a "crime of violence" and thus not an "aggravated felony" was prejudicial, where defendant was sentenced to 21 months of imprisonment and three years of supervised release; without that improper enhancement, defendant would have had total offense level of six which, combined with criminal history category III, would have led to two to eight month guideline sentence range according to Immigration and Nationality Act, §§ 101(a)(43)(F), 276(a, b).