Deadly Conduct: Crime of Violence for Federal Sentencing Guidelines?
In United States v. Hernandez-Rodriguez, decided October 9, 2006, the fifth circuit addressed whether a prior conviction under Texas state law for Deadly Conduct justified a 16 level crime-of-violence increase under Federal Sentencing Guidelines.
After pleading guilty to Illegal Reentry, the defendant’s base offense level of eight was tripled by the crime-of-violence adjustment. Since Deadly Conduct was not one of the enumerated offenses, the increase could only be justified if one of its elements was “the use, attempted use, or threatened use of physical force against the person of another”.
Since the defendant had pled to § 22.05 (b)(1), which covers discharge of a firearm at individuals, rather than (b)(2), which covers discharge of a firearm at a habitation, building or vehicle, the court concluded that it met the requirements for a crime of violence.
This case illustrates the need for lawyers to be creative when seeking plea bargains. It's too late to turn back the clock, but perhaps the defense lawyer in the first case could have sought a plea agreement to (b)(2) instead of (b)(1). That might have saved this future defendant many years off his next prison sentence.
