United States v. Jeremias Ovalle-Chun
2016 U.S. App. LEXIS 4279
| 5th Cir. | 2016Background
- Defendant Jeremias Ovalle-Chun, a deported Guatemalan national, pleaded guilty to illegal reentry under 8 U.S.C. § 1326 after being encountered in Texas in 2015.
- Ovalle-Chun had a 2004 Delaware conviction for aggravated menacing (Del. Code Ann. tit. 11, § 602(b)) based on displaying what appears to be a deadly weapon and intentionally placing another in fear of imminent physical injury.
- The PSR applied a 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Ovalle-Chun’s prior conviction was treated as a "crime of violence," producing a guidelines range of 30–37 months; the district court sentenced him to 24 months (below guidelines).
- Ovalle-Chun objected, arguing aggravated menacing did not qualify as a crime of violence because it (1) does not require actual physical force or a real weapon and (2) need not prove an actual threat.
- The Fifth Circuit reviewed the legal question de novo and the district court’s factual findings for clear error, applying the categorical approach (Taylor/Descamps) to determine whether the Delaware statute has as an element the threatened use of physical force.
- The court concluded Delaware aggravated menacing necessarily includes threatening the immediate use of force (per Delaware Supreme Court in Poteat), so it qualifies as a crime of violence and the 12-level enhancement was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ovalle‑Chun’s 2004 Delaware aggravated menacing conviction is a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) | (Government) The Delaware offense has as an element the threatened use of physical force and therefore qualifies | (Ovalle‑Chun) Aggravated menacing does not require actual physical force or a real weapon and need not prove a communicated threat, so it is not a crime of violence | The Fifth Circuit held it is a crime of violence because the statute requires intentionally placing another in fear of imminent physical injury—equivalent to threatening immediate use of force. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (framework for categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (use of categorical approach and comparison of statutory elements)
- Poteat v. State, 840 A.2d 599 (Del. 2003) (Delaware Supreme Court holding aggravated menacing includes threatening immediate use of force)
- United States v. Herrera‑Alvarez, 753 F.3d 132 (5th Cir. 2014) (discussing level of force required for "crime of violence")
- United States v. Schofield, 802 F.3d 722 (5th Cir. 2015) (elements comparison under categorical approach)
- United States v. Hernandez‑Rodriguez, 467 F.3d 492 (5th Cir. 2006) (applying categorical approach to threats/firearm discharge)
- United States v. Brown, 437 F.3d 450 (5th Cir. 2006) (weapon not required for threatened force determination)