There is a common misperception among those working in the criminal courts that only convictions with a one-year sentence imposed can be aggravated felonies.  While this is true for many crimes, it is not true across the board.  Many crimes are deemed “aggravated felonies” regardless of the sentence imposed, and for these there is no “sentence imposed” requirement at all.  Even the most minor of these latter offenses will constitute aggravated felonies regardless of how small a sentence is imposed. [208] 

 

For example, drug crimes do not depend upon the sentence imposed for classification as aggravated felonies.  Under the decision of Matter of Yanez,[209] all state court felony convictions for possession of a federally proscribed controlled substance, including a first offense, will be aggravated felonies, even if probation is imposed and no time served in custody.  Counsel can never assume that achieving a sentence of less than one year will shield the noncitizen from aggravated felony status, especially in drug cases, but the rule is different in the circuits following the hypothetical federal felony rule.  See § 7.22, supra.

 

On the other hand, for many of the most common aggravated felonies, the sentence imposed is decisive.  These offenses constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court.  Therefore, for these offenses, the many defenses against a sentence imposed of one year or more constitute complete defenses to aggravated felony status. [210] 

 

[208] See N. Tooby, Aggravated Felonies § 3.30 (2003).

[209] Matter of Yanez, 23 I. & N. Dec. 390 (BIA 2002) (en banc).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[210] See N. Tooby, Aggravated Felonies § 3.29 (2003).

Fifth Circuit

DEFINITION OF FELONY - MISDEMEANOR CONVICTION PUNISHABLE BY UP TO 18 MONTHS IMPRISONMENT IS A FELONY FOR IMMIGRATION PURPOSES AGGRAVATED FELONY - CONTROLLED SUBSTANCES OFFENSES - COLORADO MISDEMEANOR SIMPLE POSSESSION PUNISHABLE BY UP TO 18 MONTHS IMPRISONMENT IS AN AGGRAVATED FELONY
U.S. v. Sanchez-Villalobos, __ F.3d __, 2005 WL 1332244 (5th Cir. June 7, 2005) (misdemeanor simple possession, under Colorado Colo.Rev.Stat. 18-1.3- 501(1), punishable by up to 18 months imprisonment is an aggravated felony for sentencing purposes, as it is punishable by imprisonment for more than one year).

Ninth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED " ONE YEAR IS DEFINED AS 365 DAYS, REGARDLESS OF LEAP YEARS
Habibi v. Holder, 658 F.3d 977 (9th Cir. Sept. 14, 2011) (the phrase "one year" is defined as 365 days, regardless of leap years; noncitizen was deportable for aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though his sentence was served during a leap year).

AGGRAVATED FELONY " THEFT OFFENSE " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not categorically constitute an attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because 459 criminalizes conduct beyond generic attempted theft offenses"for example, entering a locked vehicle with the intent to commit not theft, but arson or vandalism. . . . Because one can be convicted under 459 for a crime that does not qualify as generic attempted theft, the statute is not a categorical match for the generic aggravated felony offense.); Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam).

Other

RESOURCES " FEDERAL CONVICTIONS " CHART OF FELONY AND MISDEMEANOR OFFENSES
Felony and Misdemeanor Federal Chart as prepared by Federal Defender office: http://ms.fd.org/maxpenalties/maxpenalties.pdf

SENTENCE - SENTENCE IMPOSED - 12 MONTHS EQUALS ONE YEAR
12 months equals one year in immigration court. See Drakes v. Zimski, 240 F.3d 246, 251 (3d Cir. 2001); United States v. Christopher, 239 F.3d 1191, 1193 (11th Cir. 2001).