The Ninth Circuit has determined that a Nevada conviction for attempted battery with substantial bodily harm is a crime of violence under the sentencing guidelines because it requires the defendant to have a specific intent both to commit battery and to bring about substantial bodily harm. Nevada defines “substantial bodily harm” as either “(1) [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or (2) [p]rolonged physical pain.”
“When someone intends to inflict prolonged pain, even relatively minor pain, it is highly improbable that they would choose to do so through the use of nonviolent force, which could easily fail to accomplish their goal. And for the same reason, it is equally improbable that Nevada prosecutors would be able to secure convictions for attempted battery with substantial bodily harm in cases in which the defendant tried to use only a touch or other nonviolent force.”
Given the similar definitions of a crime of violence under the sentencing guidelines and in immigration law, this decision could have persuasive impact in immigration litigation.
The full text of United States v. Fitzgerald can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/18-10116.pdf