In U.S. v. Wilson, No. 03-14408 (Dec. 7, 2004), the Court (Barkett, Hull & Cox) held that a prior conviction for aggravated child abuse counts as a crime of violence for purposes of the 16-level enhancement authorized by USSG § 2L1.2(b)(1)(A)((ii). The Court noted that a prior conviction under this provision references any offense that has "physical force" as an element "and" any one of a number of specific enumerated offenses, e.g. murder, manslaughter, etc... The defendant conceded that his aggravated child abuse involved "physical force" but contended that since this offense was not enumerated in the Guideline, it did not count. The Court rejected the argument, pointing out that the enumerated offenses were merely for purposes of "illustration," and did not limit the range of qualifying prior offenses involving "physical force."
The Court reversed the imposition of a two-level enhancement for causing bodily injury because it was based on the spraining of a law enforcement officer’s finger when he tacked Wilson as Wilson attempted to flee from arrest. The Court noted that the physical injury enhancement applies when a defendant behaves recklessly "in the course of fleeing," but this meant the mere fact of fleeing, in itself, did not trigger the enhancement. Wilson’s flight alone could not be said to have created the kind of "substantial risk of death or serious bodily injury" which the incremental punishment of the Guideline covered.
