Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant "statutory maximum" is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).      If, as in Washington State, a statute establishes a maximum possible sentence for violation of the statute, but that maximum may not be reached solely upon a finding that the basic elements of the offense have been committed, but rather can only be reached upon a finding of additional factors, the "statutory maximum" for the offense for Apprendi purposes is not the absolute maximum, but only the maximum the judge can imposed absent a finding of the additional factors. To impose up to the absolute maximum sentence, the additional factors must be established by a jury, or admitted by the defendant in a guilty plea.      In the immigration context, this may limit the legacy INSs ability to establish that a given crime has "maximum possible sentence" is a sentence of which a certain period "may be imposed." See, e.g. INA 212(a)(2)(A)(ii)(II) (petty offense exception where maximum possible does not exceed one year); INA 237(a)(2)(A)(i) (crime of moral turpitude where sentence of one year or more may be imposed); INA 101(a)(43)(J), (Q), (T).      Where this case is applied in the future, however, where additional factors have been found by the jury, or admitted by the defendant, the record of conviction that may be examined by an Immigration Judge in determining whether a conviction falls within a ground of removal will likely contain additional factual information with which the legacy INS can prove its case.

jurisdiction: 
US Supreme Ct

 

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