This Note examines the limitations of the strict categorical approach; the method by which sentencing courts and courts of review determine whether an offense is a crime of violence for sentence enhancement purposes. Part I of this Note examines the "crime of violence" sentence enhancement under the Federal Sentencing Guidelines ("Guidelines"). Part II examines the Ninth Circuit's analysis of what constitutes a crime of violence in United States v. Serna. Part III proposes that the types of sources available to sentencing courts when analyzing whether an offense is a violent crime should be expanded based on Justice O'Connor's dissenting opinion in Shepard v. United States. Allowing sentencing courts to consider uncontradicted evidence will provide them with the means to effectuate Congress's purpose in enacting federal gun laws, by punishing repeat offenders while maintaining the protections afforded to criminal defendants under the Due Process Clause and the Sixth Amendment of the United States Constitution. Finally, Part IV concludes that the proposed expansion of sources will remove arbitrary determinations of "crimes of violence" based on missing or incomplete court records, leading to more consistent and uniform sentences.
Daniel S. Cho,
Violence in the Courts: The Ninth Circuit's Attempt to Grapple With and Pin Down What Is a "Crime of Violence" in United States v. Serna, 37 Golden Gate U. L. Rev.