Under 18 U.S.C. 16, a crime of violence is a federal felony that has as an element the use, attempted use, or threatened use of physical force against another person or their property.1Office of the Law Revision Counsel. 18 USC 16 – Crime of Violence Defined The label matters because it attaches at the statute level, not the facts of what happened, and once it attaches it drives longer prison sentences, pretrial detention, mandatory deportation for noncitizens, mandatory restitution, and a permanent firearms ban.
What the Statute Says Today
Section 16 is written in two parts. The first, called the elements clause, covers any offense that includes physical force against a person or property as an element of the crime. The second, the residual clause, once reached any felony that by its nature carried a substantial risk that force would be used.
The residual clause is no longer enforceable. In Sessions v. Dimaya (2018), the Supreme Court held it unconstitutionally vague, following the same reasoning it had applied in Johnson v. United States (2015) to strike down the Armed Career Criminal Act’s parallel residual clause.2Supreme Court of the United States. Sessions v. Dimaya (2018)3Justia U.S. Supreme Court Center. Johnson v. United States (2015) The text still sits in the United States Code with a note flagging the ruling, but it has no legal force. Only offenses whose statutory elements require force can qualify. Crimes that merely create a risk of a violent encounter, like burglary or many drug offenses, no longer fit unless their elements independently demand force.
What Counts as Physical Force
The Supreme Court has read “physical force” narrowly, and the boundaries exclude more conduct than most people expect.
In Johnson v. United States (2010), the Court held that physical force means violent force capable of causing pain or injury. A Florida battery statute reaching any intentional touching, however slight, was too broad to qualify.4Justia U.S. Supreme Court Center. Johnson v. United States (2010) If a state offense criminalizes something as minor as an unwanted tap, it does not count.
Mental state matters just as much. In Leocal v. Ashcroft (2004), a DUI causing injury did not qualify because the statute did not require intent to harm.5Justia U.S. Supreme Court Center. Leocal v. Ashcroft (2004) Borden v. United States (2021) went further and held that reckless conduct also fails. A qualifying offense demands a purposeful or knowing mental state, not indifference to risk.6Supreme Court of the United States. Borden v. United States (2021)
There is one narrow exception to the violent-force rule. In Stokeling v. United States (2019), the Court held that robbery statutes requiring only enough force to overcome a victim’s resistance qualify, drawing on the common-law history of robbery.7Supreme Court of the United States. Stokeling v. United States (2019) Lower courts continue to work out how that carve-out sits alongside Johnson’s higher force threshold.
The Felony Requirement
A crime of violence must be a felony, meaning an offense punishable by more than one year in prison.8Office of the Law Revision Counsel. 18 US Code 3559 – Sentencing Classification of Offenses A misdemeanor assault, even one involving clear physical force, falls outside Section 16. That threshold drives a lot of plea negotiation, because dropping an offense below the one-year line strips off the consequences that follow.
How Courts Decide Whether a Prior Conviction Qualifies
Federal courts do not ask what a defendant actually did. They compare the elements of the statute of conviction to Section 16. This produces results that feel counterintuitive, but the alternative would mean relitigating every prior case.
The Categorical Approach
Under Taylor v. United States (1990), a court looks only at the statutory elements.9Justia U.S. Supreme Court Center. Taylor v. United States (1990) If the statute can be violated without using, attempting, or threatening physical force, the conviction does not qualify, even if the person personally committed a violent act.
The Modified Categorical Approach
Some statutes list multiple alternative ways to commit the offense, and only some of those alternatives require force. When the statute is genuinely divisible, courts may look at a limited set of documents from the prior case (the indictment, plea agreement, or jury instructions) to identify which alternative the defendant was convicted under. Descamps v. United States (2013) confirmed this tool applies only to divisible statutes, not to statutes written broadly around a single offense.
Federal Sentencing Consequences
The label triggers mandatory minimums under two statutes in particular.
Firearm Use During a Crime of Violence
Under 18 U.S.C. 924(c), using or carrying a firearm during a crime of violence adds a consecutive mandatory prison term on top of the sentence for the underlying offense:
- At least 5 years for carrying or possessing a firearm.
- At least 7 years for brandishing.
- At least 10 years for discharging.
- At least 25 years for a second or subsequent 924(c) conviction.
If the firearm causes a death, the penalty rises to life imprisonment, and murder can carry the death penalty.10Office of the Law Revision Counsel. 18 USC 924 – Penalties
The Armed Career Criminal Act
The ACCA imposes a 15-year mandatory minimum on anyone convicted of illegal firearm possession under 18 U.S.C. 922(g) with three prior convictions for a violent felony or serious drug offense.11Office of the Law Revision Counsel. 18 USC 924 – Penalties Without the enhancement, 15 years is the ceiling; with it, 15 years becomes the floor. Each prior is evaluated separately under the categorical approach.
Pretrial Detention
The classification can also keep a defendant in custody before trial. Under the Bail Reform Act, when the government moves for detention in a case involving a crime of violence, the court must hold a detention hearing and decide whether any release conditions can protect the community and secure the defendant’s appearance.12Office of the Law Revision Counsel. 18 USC 3142 – Release or Detention of a Defendant Pending Trial If not, the defendant stays in jail through trial.
Immigration Consequences
For noncitizens, the immigration fallout often exceeds the criminal sentence. The Immigration and Nationality Act classifies a crime of violence as an aggravated felony when the sentence imposed is at least one year, even if the entire sentence is suspended.13Legal Information Institute. 8 USC 1101 – Definitions14U.S. Citizenship and Immigration Services. USCIS Policy Manual – Permanent Bars to Good Moral Character
Mandatory Detention and Removal
An aggravated felony conviction leads to mandatory immigration detention with no bond hearing during removal proceedings.15Office of the Law Revision Counsel. 8 USC 1226 – Apprehension and Detention of Aliens With immigration court backlogs, that detention can last months or years. The label also bars cancellation of removal, one of the few paths lawful permanent residents have to fight deportation.16Office of the Law Revision Counsel. 8 USC 1229b – Cancellation of Removal
Asylum and Withholding
Humanitarian protections narrow as well. Federal law bars asylum for anyone convicted of a “particularly serious crime” who is a danger to the community.17Office of the Law Revision Counsel. 8 USC 1158 – Asylum Crimes of violence have consistently been treated as meeting that bar. In Matter of N-A-M- (2007), the Board of Immigration Appeals held that an offense need not even be an aggravated felony to count as particularly serious.18U.S. Department of Justice. In re N-A-M- (24 I&N Dec. 336) Withholding of removal faces the same bar. Convention Against Torture protection remains theoretically available but carries a steep evidentiary burden.
Mandatory Restitution
When a defendant is convicted of a crime of violence and an identifiable victim has suffered physical injury or financial loss, federal law requires the sentencing court to order restitution. It is not discretionary.19GovInfo. 18 USC 3663A – Mandatory Restitution to Victims of Certain Crimes
Restitution can cover medical care, psychiatric treatment, physical and occupational therapy, lost income, funeral expenses when the victim died, and prosecution-related costs such as child care and transportation. It does not cover pain and suffering. The government can enforce a restitution order for up to 20 years after judgment, plus any period of incarceration, and can place liens on the defendant’s property.20U.S. Department of Justice. The Restitution Process for Victims of Federal Crimes
Collateral Consequences
Because every crime of violence is a felony, a conviction triggers a permanent federal firearms ban. Anyone convicted of an offense punishable by more than one year in prison is prohibited from possessing firearms or ammunition, and violating that ban is itself a federal felony that can bring the ACCA’s 15-year minimum into play.21Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
Public housing authorities have broad discretion to deny admission or terminate assistance based on violent criminal activity. An arrest alone cannot justify denial, and screening must comply with civil rights laws, but a conviction gives housing authorities wide latitude to exclude an applicant. Some voucher programs cap the look-back period at 12 months, while standard public housing programs use a “reasonable time” standard with no fixed cutoff.
Professional licensing consequences vary by state. Some states impose waiting periods of 10 to 15 years before someone with a violent felony can apply for a license in fields like nursing, teaching, or law enforcement; others review cases individually based on the offense, time elapsed, and evidence of rehabilitation. Voting rights depend on state law as well, from automatic restoration on release to permanent disenfranchisement for certain violent crimes.
Defense Angles
The categorical approach itself is often the defense. If the statute of conviction reaches negligent or reckless conduct, or reaches touchings too minor to count as violent force, it cannot serve as a crime of violence no matter what the defendant actually did. Borden made this argument sharper by taking reckless offenses off the table.6Supreme Court of the United States. Borden v. United States (2021)
For noncitizen clients, criminal defense counsel has a constitutional duty to advise about immigration consequences. Under Padilla v. Kentucky (2010), when deportation is a clear result of a plea, failing to warn the client is ineffective assistance.22Justia U.S. Supreme Court Center. Padilla v. Kentucky (2010) In practice, defense attorneys coordinate with immigration counsel to find pleas that avoid the aggravated felony trigger: reducing the charge to a misdemeanor, negotiating a sentence under one year, or pleading to a statute that does not require intentional force.
Post-conviction relief is another route. Vacating a prior conviction for constitutional error removes it from both sentencing enhancements and immigration proceedings. Defendants sentenced under the old residual clause have used Dimaya to seek reduced sentences and, in immigration cases, reopened removal proceedings.2Supreme Court of the United States. Sessions v. Dimaya (2018)