Ninth Circuit Finds that GA Aggravated Assault is Crime of Violence

The Ninth Circuit has determined that Georgia’s aggravated assault statute is divisible as compared to the definition of a crime of violence. Aggravated assault under Georgia law has two elements: (1) commission of a simple assault and (2) the presence of one statutory aggravator. Simple assault can be committed in one of two ways: (1) attempting to commit a violent injury to the person of another; or (2) committing an act which places another in reasonable apprehension of immediately receiving a violent injury.

Applying the modified categorical approach, the Court determined that Barlow had been convicted of simple assault committed with a deadly weapon. Barlow asserted that his conviction rested upon the least of the acts criminalized by the statute, placing another in apprehension of receiving a violent injury. “[W]e need not decide whether a reasonable apprehension form of simple assault constitutes a ‘crime of violence’ because Barlow’s indictment confirms that he committed the assault ‘by striking [the victim] with said handgun’ and ‘by shooting [the victim] with said handgun,’ not by placing the victim in reasonable apprehension of receiving a violent injury.” “[T]hat is, [] Barlow ‘attempt[ed] to commit a violent injury to the person of another.’” “We therefore hold that Barlow’s conviction for aggravated assault necessarily has as an element the use, attempted use, or threatened use of physical force against the person of another, and therefore qualifies as a ‘crime of violence’ under the elements clause.”

The full text of US v. Barlow can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/10/04/22-30030.pdf

Eleventh Circuit Finds Georgia Malice Murder is Crime of Violence

The Eleventh Circuit has determined that Georgia’s malice murder statute qualifies as a crime of violence. “The Georgia malice murder statute states that ‘[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.’ Because we have held that killing in such a manner necessarily entails the use of physical force against the person of another, we conclude that Georgia malice murder . . . is a crime of violence under Section 924(c)’s elements clause.”

The full text of Alvarado-Linares v. US can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201914994.pdf

Eleventh Circuit Finds GA Simple Battery Convictions to be Aggravated Felonies

The Eleventh Circuit has determined that Georgia’s simple battery statute is divisible between offensive touching (not a crime of violence) and touching causing injury (a crime of violence). The court also declined to give credit to a state court order “clarifying” the petitioner’s sentence to be a probation-only sentence, finding that the sentence was clearly one that involved a suspended term of incarceration.

The full text of Talamantes v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201915080.pdf

Eleventh Circuit finds GA Drug Statutes Divisible

The Eleventh Circuit has determined that Georgia’s drug statutes are divisible with respect to the identity of the substance. As such, the court employed the modified categorical approach to determine that the petitioner’s conviction involved ecstasy, a drug listed in the Controlled Substance Act as MDMA.

The full text of Gordon v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201814513.pdf

Eleventh Circuit Construes Georgia's "Theft By Taking" Statute

The Eleventh Circuit has determined that Georgia's "theft by taking" statute is not categorically a theft offense.  The statute includes obtaining property through fraudulent means, and thus, with the owner's consent.  This conduct falls outside the generic definition of a theft offense.

The full text of Vassell v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/pub/files/201511156.pdf

Eleventh Circuit Holds that Georgia Obstruction Conviction is a Violent Felony under ACCA

In a published decision the Eleventh Circuit determined that a felony conviction in Georgia for obstruction qualified as a violent felony under the Armed Career Criminal Act (ACCA).  Georgia’s felony obstruction statute applies only to those who obstruct a law enforcement officer “by offering or doing violence” to the officer’s person.  This includes the attempted use of physical force by “pushing, struggling, kicking and flailing arms and legs."  Thus, it has as an element the use, attempted use, or threatened use of physical force against the person of another.  Given the similar language in the ACCA's violent felony definition and a crime of violence under 18 USC 16(a), this conviction likely qualifies as a crime of violence for immigration purposes, too.

The full text of US v. Brown can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201411502.pdf