Szucz-Toldy, Andrej v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1536
ANDREJ SZUCZ-TOLDY,
Petitioner,
v.
ALBERTO GONZALES, United States
Attorney General,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A19 268 790
____________
ARGUED JANUARY 26, 2005—DECIDED MARCH 11, 2005
____________
Before POSNER, MANION, and WOOD, Circuit Judges.
PER CURIAM. Andrej Szucz-Toldy, a native of the former
Czechoslovakia and a citizen of Slovakia, petitions for re-
view of the BIA’s determination that his Illinois conviction
for “harassment by telephone” is a crime of violence and,
hence, an aggravated felony that subjects him to removal.
We grant the petition, vacate the underlying decision, and
remand for further consideration.
In April 2003, Szucz—who has lived in the United States
since 1973 and has been a lawful permanent resident since
2 No. 04-1536
1981—pleaded guilty to a single count of harassment by
telephone under 720 ILCS § 135/1-1(2). That provision
prohibits “[m]aking a telephone call, whether or not con-
versation ensues, with intent to abuse, threaten or harass
any person at the called number.” Szucz was sentenced to
30 months’ imprisonment. In July 2003 immigration au-
thorities issued a Notice to Appear, asserting that Szucz was
subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) for
having been convicted of an aggravated felony. “Ag-
gravated felony” is defined in 8 U.S.C. § 1101(a)(43)(F) to
include any crime of violence (as defined by 18 U.S.C. § 16)
for which the term of imprisonment is at least one year.
Section 16, in turn, defines a crime of violence as:
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the per-
son or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used
in the course of committing the offense.
Before the IJ, Szucz argued that he had not been convicted
of a crime of violence. He contended that § 16(a) is con-
cerned only with the generic elements of the harassment-by-
telephone offense, which, he submitted, do not include
physical force or the threat of force. Szucz also argued that
his conviction is not a crime of violence under § 16(b),
submitting that the inquiry under that provision is similarly
confined to the elements of the predicate offense. The
immigration authorities responded by arguing in general
terms that the IJ was not restricted to examining the ele-
ments of 720 ILCS § 135/1-1(2) but instead could look to the
indictment, which alleges that Szucz had “threatened the
life” of his victim.
No. 04-1536 3
The IJ concluded that Szucz’s harassment conviction is a
crime of violence under § 16(a). The IJ stated that the stat-
utory language of 720 ILCS § 135/1-1(2) is “divisible” be-
cause harassing another would not be a crime of violence,
but threatening another might be. He therefore looked
behind the statute to the indictment, where he learned of
Szucz’s death threat. The IJ concluded that “threatening the
life of another person is a crime of violence under 18 U.S.C.
Section 16(a) because it involves the threatened use of
physical force against another person.”
Szucz appealed to the BIA, arguing that his conviction is
not a crime of violence under § 16(a) because the Illinois
statute has only two elements—making a telephone call, and
doing so with the intent to abuse, threaten, or harass—
neither of which requires using or threatening to use force.
He also brought to the Board’s attention our newly issued
decision in Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003),
which, he said, confirmed that § 16(a) is analyzed under an
elements-only approach. In addition, Szucz changed tack
regarding § 16(b) and argued that harassment by telephone
is not a crime of violence under that provision because there
is no substantial risk of physical force during the commis-
sion of the offense, since presumably a telephone caller is by
nature physically removed from the victim. See United States
v. Lane, 252 F.3d 905, 907 (7th Cir. 2001); United States v.
Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001). The immigra-
tion authorities responded with a one-paragraph argument
that the IJ’s opinion was “exhaustive” and thus “it would
serve no purpose to repeat all the facts and cases cited in
that opinion.” The BIA summarily affirmed the IJ’s order,
making no mention of Flores, and Szucz timely filed this
petition.
The government argues that the petition must be dis-
missed for lack of jurisdiction, observing that federal courts
4 No. 04-1536
are without jurisdiction to review a final order of removal
of an aggravated felon, 8 U.S.C. § 1252(a)(2)(C). Yet the
government concedes that we retain jurisdiction to deter-
mine whether Szucz has in fact committed an aggravated
1
felony. See Gill v. Ashcroft, 335 F.3d 574, 575 (7th Cir. 2003).
Thus the jurisdictional question and the merits collapse into
a single issue for review.
Szucz contends that his conviction for harassment by
telephone is not a crime of violence, and therefore, not an
aggravated felony. He renews his argument that the IJ dis-
regarded the plain language of § 16(a) by examining not
only the elements of 720 ILCS § 135/1-1(2) but also his
actual behavior as alleged in the indictment. Szucz argues
that the only salient question under § 16(a) is whether
§ 135/1-1(2) contains as an element the use or threatened use
of physical force, and contends that it does not. The gov-
ernment responds that the IJ was not limited to examining
the elements of the statute, and instead properly looked to
the indictment in determining whether Szucz had been con-
victed of a crime of violence. In support, it cites to several
cases decided under § 16(b).
Flores is the most relevant precedent to the parties’ dis-
agreement, and it forecloses the government’s argument. In
that case, we held that an Indiana conviction for misde-
meanor battery was not a crime of violence under § 16(a),
rejecting the government’s position that the court should
look to the defendant’s actual conduct—attacking and beat-
ing his wife—rather than the elements of the predicate
offense. 350 F.3d at 672. We noted that, because § 16(a)
1
In appeals like this one, the government need not waste time
contesting our jurisdiction when it is clear that we retain juris-
diction over the question of whether the predicate offense is in
fact an aggravated felony.
No. 04-1536 5
requires the offense to include “as an element” force or the
threat of force, the proper inquiry is whether the crime as
charged, rather than as committed, is a crime of violence. Id.
at 670. We conceded that where a statute defines as a single
felony some acts that constitute crimes of violence and some
that do not, courts may need to examine some aspects of the
defendant’s actual behavior in order to determine what
exactly he was convicted of. Flores, 350 F.3d at 670 (citing
United States v. Howze, 343 F.3d 919, 923 (7th Cir. 2003)
(looking to charging papers under parallel provision to
§ 16(b) to determine if defendant had been convicted of theft
under branch of statute prohibiting stealing from live
person (a crime of violence) or from a grave or coffin (which
is not)). Nevertheless, we emphasized that when classifying
an offense under § 16(a) “the inquiry begins and ends with
the elements of the crime.” Id. at 671; cf. Singh v. Ashcroft, 386
F.3d 1228, 1231 (9th Cir. 2004) (stating that, for purposes of
§ 16(a), an “element” is a constituent part of the predicate
offense that must be proven in every case to sustain a
conviction); United States v. Franklin, 302 F.3d 722, 723 (7th
Cir. 2002) (noting that under 18 U.S.C. § 924(e)(2)(B)(i)’s
definition of “violent felony,” which is nearly identical to
§ 16(a)’s definition of crime of violence, if force or threat of
force is not required to sustain conviction, then offense is
not a violent felony).
The Illinois harassment-by-telephone statute has two ele-
ments: (1) making a telephone call (2) with the intent to
abuse, threaten, or harass someone at the called number. See
People v. Jones, 778 N.E.2d 234, 237 (Ill. App. Ct. 2002); People
v. Pisani, 536 N.E.2d 247, 251 (Ill. App. Ct. 1989) (construing
134 Ill. Rev. Stat. § 16.4-1(2), the identical predecessor to 720
ILCS § 135/1-1(2)). The statute prohibits making a telephone
call with a certain intent, not the specific words that the
caller may or may not eventually utter, such as a threat or
6 No. 04-1536
words of abuse. People v. Taylor, 812 N.E.2d 759, 764 (Ill.
App. Ct. 2004). The actual words the caller uses are signifi-
cant only insofar as they elucidate his intent when placing
the call. Id.Therefore, to sustain a conviction under the harassment
by telephone statute, it is not necessary to prove the use or
threatened use of physical force. It is clear from the Illinois
decisions cited above that the state need not prove the
existence of a threat; the state need only establish that there
was a phone call, and that the caller had the requisite intent.
See, e.g., Pisani, 536 N.E.2d at 249 (involving intent to harass
rather than to threaten). Furthermore, although the Illinois
caselaw applying § 135/1-1(2) and its predecessor statute is
relatively sparse, nothing in the cases suggests that the only
threats punishable under the statute are threats of physical
force. See Pet’r’s Br. 10-11 (discussing range of threats
punishable in Illinois, including threats to malign or
slander, to initiate criminal proceedings, and to bring about
a boycott or strike). Thus, the Illinois statute is distinct from
statutes that expressly prohibit “threatening to kill” or
“threatening to injure,” which courts have consistently
found to be crimes of violence under § 16(a) and its parallel
provision in the sentencing guidelines, U.S.S.G. § 4B1.2(a)(i).
See United States v. McCaleb, 908 F.2d 176, 178 (7th Cir. 1990)
(threatening to kill President in violation of 18 U.S.C. § 871is crime of violence under former guideline definition that
incorporated § 16(a)); see also Rosales-Rosales v. Ashcroft, 347
F.3d 714, 717 (9th Cir. 2003) (California conviction for
making terroristic threats is crime of violence because a
statutory element is threatening to commit crime that will
cause “death or great bodily injury”); Bovkun v. Ashcroft, 283
F.3d 166, 170 (3d Cir. 2002) (conviction under statute
making it a crime to threaten “to commit any crime of
violence” is crime of violence under § 16(a)); United States v.
No. 04-1536 7
Santos, 131 F.3d 16, 21 (1st Cir. 1997) (threatening to kill
President is crime of violence under guideline definition
with nearly identical language to § 16(a)); United States v.
Bonner, 85 F.3d 522, 527 (11th Cir. 1996) (threatening to
“assault, kidnap, or murder, a United States official” is
crime of violence under same guideline definition); United
States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir. 1990)
(conviction under 18 U.S.C. § 876 for threatening “to injure
the person of the addressee or of another” is crime of vio-
lence under former guideline definition that incorporated
§ 16(a)).
The government misses the mark by insisting that the
facts alleged in the indictment demonstrate that Szucz com-
mitted a crime of violence under § 16(a). As Szucz argues,
the particular method by which he violated the telephone
harassment statute has no bearing whatever on whether one
of the elements of that statute is the use or threatened use of
force. Therefore, the IJ had no reason to look to the indict-
ment and examine the facts alleged there. See United States
v. Martinez-Mata, 393 F.3d 625, 628-29 (5th Cir. 2004); United
States v. Fulford, 267 F.3d 1241, 1250-51 (11th Cir. 2001); United
States v. Smith, 171 F.3d 617, 620-21 (8th Cir. 1999).
Given that § 16(a) is inapposite, it would seem that the
next logical step would be to explore whether Szucz was
convicted of a crime of violence under § 16(b). But both par-
ties assert that this question is not before the court at this
time. We therefore hold only that the IJ erred by concluding
that harassment by telephone is a crime of violence under
§ 16(a); the Board on remand may consider whether any
analysis under § 16(b) is appropriate.
8 No. 04-1536
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-11-05