FIFTH CIRCUIT RULES THAT INJURY TO A CHILD IS NOT A CRIME OF VIOLENCE UNDER THE GUIDELINES

German Ordino-Ortega was sentenced to 60 months in the Federal prison for being unlawfully present in the united States following deportation. The sentence was based on a base offense level of eight and an 16-level enhancement for having a prior conviction for a crime of violence.

However, the Fifth Circuit Court of Appeals ruled that a conviction for injury to a child under the Texas Penal Code did not qualify as a crime of violence. A crime of violence, according to the comment to Sentencing Guideline Section 2L1.2 is one that either is on “a list of enumerated crimes or ‘any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.’”

But under Texas law injury to a child can be committed without the use, attempted use, or threatened use of physical force. For example it can be committed by an act of omission or by placing poison in a child’s food. Neither of these would qualify as an act of violence under the Guidelines. Therefore an act of violence is not an element of the offense and cannot be used to aggravate the sentence.