In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1071

LEONEL JIMENEZ-GONZALEZ,

Petitioner,

v.

MICHAEL B. MUKASEY, United States

Attorney General,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A42-914-629

ARGUED SEPTEMBER 10, 2008—DECIDED NOVEMBER 21, 2008

Before COFFEY, RIPPLE and MANION, Circuit Judges. 

RIPPLE, Circuit Judge. Leonel Jimenez-Gonzalez’s petition

for review presents an issue of first impression in this

circuit: whether criminal recklessness constitutes a crime

of violence under 18 U.S.C. § 16(b). Aliens are removable

under 8 U.S.C. § 1227(a)(2)(A)(iii) if they commit an

aggravated felony. The definition of “aggravated felony”

includes a conviction for a “crime of violence []as defined

in section 16 of Title 18,” for which the term of imprison-
2 No. 08-1071

ment is at least one year. 8 U.S.C. § 1101(a)(43)(F). Mr.

Jimenez-Gonzalez, a permanent resident, pleaded guilty

to criminal recklessness for shooting a firearm into an

inhabited dwelling in violation of Indiana Code § 35-42-2-

2(c)(3). The Department of Homeland Security ordered

Mr. Jimenez-Gonzalez removed to his native Mexico for

having committed a crime of violence. Because crimes of

violence, as defined under § 16(b), are limited to society’s

most serious offenses—offenses that do not include

reckless or accidental conduct—we grant Mr. JimenezGonzalez’s petition for review and hold that criminal

recklessness is not a crime of violence for immigration

purposes.

I

BACKGROUND

A. Facts

Leonel Jimenez-Gonzalez, the youngest of eight children,

came to the United States as a small child in 1991. He

lived with his mother, father and seven siblings in various

cities, eventually settling in Indianapolis. Mr. JimenezGonzalez and his family became lawful permanent residents, and, although his parents eventually chose to

return to Mexico, Mr. Jimenez-Gonzalez and his siblings

settled here as adults.

In October 2005, Mr. Jimenez-Gonzalez pleaded guilty

to two counts of criminal recklessness, a Class C felony.

Class C criminal recklessness is defined in Indiana as

follows:
No. 08-1071 3

(b) A person who recklessly, knowingly, or intentionally performs: 

(1) an act that creates a substantial risk of bodily

injury to another person 

. . . 

commits criminal recklessness.

(c) The offense of criminal recklessness as defined

in subsection (b) is:

. . .

(3) a Class C felony if:

(A) it is committed by shooting a firearm into

an inhabited dwelling or other building or

place where people are likely to gather.

Ind. Code § 35-42-2-2(b)(1), (c)(3). According to his presentence report, Mr. Jimenez-Gonzalez had admitted in

his plea agreement to committing two counts of criminal

recklessness by shooting a firearm from his truck into

an apartment located in a residential neighborhood. He

was then sentenced to four years’ imprisonment. Based

on this conviction the Department of Homeland

Security initiated removal proceedings against Mr.

Jimenez-Gonzalez.

B. Immigration Proceedings

When Mr. Jimenez-Gonzalez appeared before an Immigration Judge (“IJ”), he admitted that he had been convicted of criminal recklessness and testified that he did not
4 No. 08-1071

have any fear that he would be harmed or mistreated

if removed to Mexico. The IJ admitted evidence

detailing Mr. Jimenez-Gonzalez’s convictions for criminal recklessness including the abstract of judgment, presentence report and officer’s probable cause affidavit.

Mr. Jimenez-Gonzalez then argued that criminal recklessness was not a crime of violence and that, therefore, he

was not removable for having committed an aggravated

felony.

The IJ disagreed and held that criminal recklessness is

a crime of violence because it creates a substantial risk

that the actor intentionally would use force in furtherance

of the offense. The Board of Immigration Appeals

affirmed the IJ’s decision; it held that felony criminal

recklessness committed by “shooting a firearm into an

inhabited dwelling or other building or place where

people are likely to gather” in violation of Indiana Code

§ 35-42-2-2(c)(3) constituted a crime of violence. The BIA

reasoned that shooting a gun into an apartment necessarily caused a substantial risk that the offender would

use physical force against the person or property of

another during the commission of the offense.

II

DISCUSSION

In his petition for review, Mr. Jimenez-Gonzalez argues

that he is not subject to removal because criminal recklessness is not a crime of violence. As relevant here, “crime of

violence” is defined in 18 U.S.C. § 16(b) as an offense “that
No. 08-1071 5

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.” See also Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004).

Both parties agree that Mr. Jimenez-Gonzalez’s convictions were felonies. We review de novo whether a conviction qualifies as a crime of violence under Section 16(b).

See LaGuerre v. Mukasey, 526 F.3d 1037, 1039 (7th Cir. 2008).

Mr. Jimenez-Gonzalez submits that his conviction

for criminal recklessness cannot be a crime of violence

because Section 16(b) requires that a crime of violence

have a mens rea higher than recklessness. The Supreme

Court examined the scope of Section 16(b) in Leocal v.

Ashcroft, holding that a conviction for drunk driving did

not qualify as a crime of violence under Section 16(b). 543

U.S. at 13. In reaching that conclusion, the Court held

that a crime based on strict liability or negligence could

not be a crime of violence, because “[i]nterpreting § 16 to

encompass accidental or negligent conduct would blur

the distinction between the ‘violent’ crimes Congress

sought to distinguish for heightened punishment and

other crimes.” Id. at 11. The Court reserved for another

day the issue whether reckless crimes could qualify as

crimes of violence. Id. at 13 (“This case does not present

us with the question whether a state or federal offense

that requires proof of the reckless use of force against a

person or property of another qualifies as a crime of

violence.”).

In the wake of Leocal, five other circuits have held that

reckless crimes cannot be crimes of violence under
6 No. 08-1071

Section 16(b). See United States v. Zuniga-Soto, 527 F.3d 1110,

1124 (10th Cir. 2008) (holding that reckless assault on a

police officer was not a crime of violence); United States v.

Portela, 469 F.3d 496, 499 (6th Cir. 2006) (holding that

reckless vehicular homicide was not crime of violence);

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31 (9th

Cir. 2006) (en banc) (discussing Leocal and holding that

reckless domestic violence was not a crime of violence);

Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006)

(holding that reckless assault was not a crime of violence);

Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir. 2005)

(holding that reckless vehicular homicide was not a

crime of violence). These circuits have interpreted Leocal to

limit the scope of Section 16(b) to crimes that require

purposeful conduct, rather than negligent or reckless

conduct.

Today we join our sister circuits and hold that reckless

crimes are not crimes of violence under Section 16(b). As

the Third Circuit persuasively reasoned, “[t]he cornerstone

of the Leocal Court’s reasoning was that the concept of the

use of physical force against the person or property of

another ‘requires active employment’ and ‘naturally

suggests a higher degree of intent than negligent or merely

accidental conduct.’” Oyebanji, 418 F.3d at 263 (quoting

Leocal, 543 U.S. at 9 (emphasis in original)). And we

believe that accidental and reckless crimes are not the

type of “violent” crimes Congress intended to distinguish as worthy of removal. See Leocal, 543 U.S. at 11;

Garcia, 455 F.3d at 468-69.

Additionally, the Supreme Court’s heavy reliance on

burglary as the prototypical example of a crime of violence
No. 08-1071 7

supports our holding that reckless crimes are not crimes

of violence. The Court reasoned that burglary was a

crime of violence under Section 16(b) “not because the

offense can be committed in a generally reckless way or

because someone may be injured, but because burglary,

by its nature, involves a substantial risk that the burglar

will use force against a victim in completing the crime.”

Leocal, 543 U.S. at 10. The act of burglary requires intentional conduct and intentionally burglarizing a home

risks having to use force. By contrast, criminal recklessness

as defined by § 35-41-2-2 of the Indiana Code does not

require any purposeful conduct. Furthermore, criminal

recklessness does not necessarily create a risk that force

may be used as a means to an end during the commission

of the offense. Unlike burglary, where there necessarily

is a risk of force being employed in a confrontation

inside the dwelling, the offense of criminal recklessness

is complete when the gun is fired. See Leocal, 543 U.S. at

10; Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 446-47 (4th

Cir. 2005) (holding that risk of force must be a “means to

an end” in the commission of the offense); see also BazanReyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (requiring

recklessness “with respect to the risk that intentional

physical force will be used in the course of committing

the offense”).

In this case, although the result seems, at first glance,

counterintuitive, we must look at the statute as a whole

in order to determine whether the elements of the underlying offense categorically constitute a crime of violence.

See LaGuerre, 526 F.3d at 1039; Bazan-Reyes, 256 F.3d at 612.

It is important to recognize that, under Indiana law, Class
8 No. 08-1071

Cf. Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir. 2003) 1

(holding that second-degree manslaughter, which required

only reckless conduct, was not a crime of violence). 

C criminal recklessness may be committed in many

different ways, some of which require no intentional

conduct at all. Because the elements of criminal recklessness can encompass both accidental and aggressive

conduct, it cannot be a crime of violence under

Section 16(b).

The Government argues, despite the decisions of our

sister circuits, that Section 16(b) does not require that a

crime have a mens rea higher than recklessness. Only

two cases have held that a crime involving reckless behavior is a crime of violence under Section 16(b). Importantly, in both of those cases, the underlying crimes

of conviction required intentional conduct exhibiting a

reckless disregard to the likelihood of injury. In Blake v.

Gonzales, 481 F.3d 152, 159-63 (2d Cir. 2007), the Second

Circuit held that a conviction for reckless assault and

battery of a police officer was a crime of violence

because the statute required an intentional assault on an

officer with reckless disregard to the likelihood that the

officer may be injured. Similarly, the Fifth Circuit held 1

that facilitation of a drive-by shooting was a crime of

violence because the statute in question required both

(1) intentional facilitation and (2) the intentional discharge

of a weapon by another occupant in the car. Nguyen v.

Ashcroft, 366 F.3d 386, 389 (5th Cir. 2004). Although the

alien in Nguyen was merely reckless regarding the
No. 08-1071 9

potential for injury, the alien also intentionally committed

an act that, by its nature, created a substantial likelihood

that force would be used. Id. The crimes in Blake and

Nguyen, unlike the crime at issue in this case, involved

conduct that was not purely reckless.

The Government also relies upon a recent case from

this circuit, Quezada-Luna v. Gonzales, 439 F.3d 403, 406 (7th

Cir. 2006). There, we recognized that the act of discharging a weapon into a home “describes conduct that

presents a substantial risk that physical force against the

person or property of another may be used.” Quezada-Luna,

however, dealt with a conviction for the intentional

discharge of a weapon into a home, a crime that could not

be committed in a merely reckless or accidental way.

Therefore the Government’s arguments are not persuasive

because the authorities upon which it relies all involved

proscribed activity that necessarily required the use of

force.

Recently the Supreme Court, and this court, have interpreted a similar statute in a manner that casts a useful

cross-light on the interpretive task before us today. In

those cases, the statute at issue was the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1), 924(e)(2)(B).

The Act defines a “violent felony” as one that “is burglary,

arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii). Violent felonies that are not among the

listed offenses fall under the second or “residual clause” of

the section. The Supreme Court recently held that drunk
10 No. 08-1071

See also Ramirez v. Mukasey, 520 F.3d 47, 50 (1st Cir. 2008); 2

Canada v. Gonzales; 448 F.3d 560, 571 n.8 (2d Cir. 2006);

United States v. Sawyers, 409 F.3d 732, 740 (6th Cir. 2005).

driving was not a violent felony under that clause of the

ACCA because drunk driving was not “similar to” the

listed offenses in that it did not “typically involve purposeful, violent, and aggressive conduct.” Begay v. United

States, ___ U.S. ___, 128 S. Ct. 1581, 1586 (2008).

The definition of a crime of violence under Section 16(b)

is slightly different from the residual clause of the

ACCA. Section 16(b) requires a substantial likelihood that

force will be used in the commission of the offense; the

residual clause, by contrast, requires a substantial likelihood of physical injury. Leocal, 543 U.S. at 10 n.7; BazanReyes, 256 F.3d at 609-12. Despite the slightly different

2

definitions, the Supreme Court’s holding in Begay perfectly

mirrored the analysis in Leocal regarding whether drunk

driving was a crime of violence under Section 16(b). In

both Begay and Leocal, the Court held that negligence and

strict-liability crimes were not violent crimes but declined

to decide whether crimes of recklessness could be.

After Begay, we held that crimes of recklessness are not

violent felonies under the ACCA. United States v. Smith,

___ F.3d ___, 2008 WL 4182648, at *4 (7th Cir. Sept. 12,

2008). Analyzing a different subsection of the same

Indiana recklessness statute before us today, id. at *2, n.2,

we noted that the non-purposeful nature of the DUI

offense was the “primary distinction” relied on by the

Supreme Court in Begay. See id. at 8; United States v. Spells,
No. 08-1071 11

537 F.3d 743, 751-52 (7th Cir. 2008). Significantly, the nonpurposeful nature of the DUI offense was the sole factor

relied on by the Supreme Court in Leocal when it held

that drunk driving did not qualify as a crime of violence

under Section 16(b). See Leocal, 543 U.S. at 11-12. Given

that Section 16(b) and the residual clause of the ACCA

contain similar language and that the Supreme Court

applied similar logic in Leocal and Begay, we believe that

the reasoning in Smith supports the view that crimes

with a mens rea of recklessness are not crimes of violence

under Section 16(b).

Finally, we note that Congress has recognized the

seriousness of firearms offenses in a different provision of

the Immigration and Nationality Act. An alien who has

been convicted of violating any federal or state law

that makes it a crime to attempt to use any weapon

“which is a firearm or destructive device” as defined in

18 U.S.C. § 921(a) is removable. 8 U.S.C. § 1227(a)(2)(C); see

Dave v. Ashcroft, 363 F.3d 649, 650-52 (7th Cir. 2004) (denying alien’s petition for review of removal order where

alien was convicted of reckless discharge of a firearm).

The key difference is that an alien removed for having

committed a crime of violence is permanently barred

from returning to the United States, but an alien who is

removed based on a firearms conviction under 8 U.S.C.

§ 1227(a)(2)(C) may apply for readmission after ten years.

Quezada-Luna, 439 F.3d at 404. As a reviewing court, we

cannot deny Mr. Jimenez-Gonzalez’s petition based on

a rationale that neither the BIA, nor the IJ, relied upon.

See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947);

Gebreeyesus v. Gonzales, 482 F.3d 952, 955-56 (7th Cir.
12 No. 08-1071

2007). Thus, because Mr. Jimenez-Gonzalez was not

charged as removable for having committed a firearms

offense—and therefore neither the IJ nor the BIA relied on

this rationale—we cannot deny Mr. Jimenez-Gonzalez’s

petition based on § 1227(a)(2)(C). Yet in deciding that

reckless-firearms offenses cannot be crimes of violence

under Section 16(b), we think it particularly important

to note that Congress has recognized the potential

danger inherent in the reckless use of a firearm and

has provided a means for DHS to remove individuals

who are convicted of these grave offenses.

Conclusion

For the foregoing reasons, Mr. Jimenez-Gonzalez’s

petition for review is granted, the judgment of the Board

of Immigration Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

The Petitioner may recover his costs for this appeal.

PETITION FOR REVIEW GRANTED

11-21-08