“[A]n unsubstantiated risk of physical force in some small subset of cases is [insufficient to classify [an] offense as a ‘crime of violence.’ ”
How later courts described this case
- “[A]n unsubstantiated risk of physical force in some small subset of cases is [insufficient to classify [an] offense as a ‘crime of violence.’ ”
- looking to “the mainstream of prosecutions brought under the statute”
Written by the judges who cited it.
The opinion
GRIFFIN, Circuit Judge,
concurring in the judgment.
I concur in the judgment, but do not join the majority opinion because I disagree with its obiter dicta.
The question presented in this petition for review is whether petitioner’s California state conviction for “grand theft,” 1 California Penal Code § 487 (1989), qualifies as a “crime of violence” and thus an “aggravated felony” for purposes of 18 U.S.C. § 16 (b).
Because the government does not claim that petitioner’s conviction qualifies as a crime of violence under 18 U.S.C. § 16 (a), the majority’s analysis of the elements of the offense is misplaced. Similarly, the majority’s focus strays in its discussion of the “rule of lenity” and crimes by a “murderer, rapist, robber or others who take property by force against a person.”
The dispositive inquiry does not pertain to the elements of the offense or risks of physical force to a person, but whether the conviction for grand theft “by its nature, involves a substantial risk that physical force against the ... property of another may be used in the course of committing the offense.” 18 U.S.C. § 16 (b). I agree with petitioner that California grand theft does not involve, in its ordinary or natural sense, a “substantial risk” that physical force may be used against property. See Leocal v. Ashcroft, 543 U.S. 1, 8-11 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004).
For this reason, I concur in the judgment.
. The majority refers confusingly to this conviction in the various terms of ''unauthorized use of an automobile”; “theft of an automobile”; "auto theft”; and “grand theft.”