A sentence enhancement should not be considered to be part of the record of conviction, for purposes of determining the elements of the offense of which the noncitizen was convicted. See United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc)(two-year sentence imposed for a misdemeanor petty theft conviction, which was made a felony by a sentence enhancement based on a prior petty theft conviction, was not imposed "for" the theft offense).      A conviction of an offense which does not fall within the category of firearms offenses, according to the elements of the offense, does not become a firearms offense by reason of a sentence enhancement increasing sentence if a firearm was used by any principal during commission of the offense.      A federal conviction of violating 18 U.S.C. § 924(c)(1), using or carrying a firearm during and in relation to any crime of violence or drug trafficking crime, may be held to constitute a deportable firearms offense. The BIA held that an analogous Florida enhancement statute constituted a firearms offense, since it was commonly treated as a separate offense, and stated in dictum the same was true of § 924(c)(1). The United States Supreme Court, however, since held that the aggravated sentence for illegal reentry after deportation after aggravated felony conviction did not constitute a separate offense, but was rather a sentence enhancement that could be imposed even if the prior conviction was not pleaded or proven at trial.      The federal statute provides that for using or carrying a firearm during certain crimes, the defendant "shall, in addition to the punishment prescribed for such crime of violence or drug trafficking crime, be sentenced to a term of imprisonment of not less than five years . . . ." Under the reasoning of the Supreme Court, this may well constitute a sentence enhancement, rather than a criminal offense for which one may suffer a "conviction." If so, it could not trigger removal as a firearms conviction under INA § 241(a)(2)(C), 8 U.S.C. § 1231(a)(2)(C). Moreover, since it does not constitute a conviction at all, it could not in itself constitute a conviction for a drug offense, crime of violence, or aggravated felony, so cancellation of removal or INA § 212(c), 8 U.S.C. § 1182 relief would not be barred.

jurisdiction: 
Ninth Circuit

 

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