Resisting an Officer With Violence in Florida Is a Violent Crime, Eleventh Circuit Rules – U.S. v. Romo-Villalobos

March 28, 2012 by David S. Seltzer

As a criminal defense attorney in south Florida, I have written here before about the crime of resisting an officer, which is really two crimes in Florida. Resisting an officer with or without violence typically means “not doing what the officer wanted,” which in turn means it’s a nuisance charge often brought against people who happened to make the officer angry. Not everything that makes an officer angry is a crime, of course, but having the charges dismissed or dropped can require early and expensive legal intervention. When the charges lead to a conviction, that conviction can lead to all kinds of unpleasant consequences in the future, as a recent case from the Eleventh U.S. Circuit Court of Appeals shows. In United States v. Romo-Villalobos, the court ultimately decided that Hector Manuel Romo-Villalobos had committed a crime of violence because he had a resisting an officer conviction, and upheld his long immigration sentence.

Romo-Villalobos is a Mexican citizen who had been removed from the United States twice before. The first time, the removal was after conviction for false representation; the second time, it was after a conviction for resisting an officer with violence. He then reentered the United States again and apparently was caught again. At his sentencing for this most recent offense, the district court enhanced his sentence by 16 levels because he had been previously deported after committing a crime of violence. It cited his previous conviction for resisting an officer with violence in Florida. The result was a sentence of 37 months in prison, to run concurrently with a sentence of 24 months for illegal reentry after false representation. Romo-Villalobos appealed, arguing that the Florida law did not meet the requirements to be a crime of violence under federal immigration law.

The Eleventh Circuit disagreed that resisting an officer with violence should not count as a crime of violence. Under the sentencing guidelines, a previous deportation for a felony crime of violence will earn the defendant a 16-level enhancement for any new illegal reentry. A crime of violence, in turn, is any crime involving “the use, attempted use or threatened use of physical force.” Federal law instructs federal courts interpreting state laws like this one to use the interpretations offered by the state’s Supreme Court, so the Eleventh turned to the Florida courts’ interpretation of resisting an officer with violence. Florida’s Supreme Court has not decided the issue, but its appellate courts have held that violence is an element of the offense. The state statute itself makes it a crime to resist or obstruct an officer when “offering or doing violence to” the officer’s person. Thus, the Eleventh affirmed the use of the sentencing enhancement.

As a Miami-Dade immigration crimes lawyer, I tell all of my clients to be very careful when they are charged with crimes, because nearly any criminal conviction could threaten a noncitizen’s immigration status. Even a lawful permanent resident — someone who has a “green card” — can be removed for certain crimes. And as this case underscores, it’s not usually clear in immigration law which crimes fall into the category of “crime of violence” or “crimes of moral turpitude” (another category of offense that can lead to removal). This is particularly upsetting for crimes like resisting an officer, since they are largely up to the officer’s discretion. Not every officer uses that discretion carefully; some use the charge as a way to punish defendants they don’t like. As a Fort Lauderdale resisting an officer attorney, I try to fight arbitrary charges like those to get them dropped or dismissed as early as possible.

If you’re charged with a crime in Florida and you’d like to talk to an experienced attorney about your options, don’t wait to call Seltzer Law, P.A. We’re available to take calls 24 hours a day and seven days a week, because we know police officers don’t stop making arrests and trouble after business hours. You can reach us through our website or call 1-888-THE-DEFENSE (1-888-843-3333).

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