CA5 on Crime of Violence: Rodriguez v. Holder

CA5 on Crime of Violence: Rodriguez v. Holder

"[T]he issue before this court is whether a conviction under section 22.011(a)(1) of the Texas Penal Code is categorically a crime of violence under § 16(b), and we must determine “whether the crime inherently involves a substantial risk that intentional physical force may be used in the commission of the crime” to answer that question.  Section 16(b) encompasses crimes that, while capable of being committed without the use of physical force, always entail a substantial risk that physical force—defined  as  “destructive  or  violent force”—may be used.  Rodriguez argues that two of the actions deemed to be “without  consent” in section 22.011(a)(1)—where a mental health worker  or clergyman exploits the emotional dependency of the victim—do not constitute crimes of violence.  We agree. ... Section 16 “has both  criminal  and  noncriminal  applications,”  and  thus,  “the rule of lenity applies.”  We therefore are “constrained to interpret any ambiguity in the statute in [Rodriguez’s] favor.” ... Though section 22.011 defines certain acts as being “without consent,” we are applying a federal statute, 28 U.S.C. § 16(b), to a Texas Penal Code provision.  Deeming the actions described in section 22.011 to be “without consent” does not control whether an offense is a “crime of violence” under § 16(b).  For the foregoing reasons, we GRANT Rodriguez’s petition and VACATE the order of removal." - Rodriguez v. Holder, Jan. 17, 2013.  [Hats way off to El Paso attorney Orlando Mondragon, who came up the hard way.]