Aggravated Felonies

Criminal defendants with aggravated felony prior convictions are affected in several ways.  First, the aggravated felony prior conviction may constitute an element of the criminal offense with which the defendant is charged.  For example, a person who aids the illegal entry of a noncitizen who has been convicted of an aggravated felony is guilty of a federal offense carrying a maximum of 10 years in prison. [46]

Second, the aggravated felony prior may increase the statutory maximum prison sentence that may be imposed upon conviction.  For example, a noncitizen convicted of illegal re-entry after deportation faces an increased statutory maximum of 20 years in federal prison if s/he has been convicted of an aggravated felony before being deported.[47]

Moreover, there are a number of federal criminal offenses for which the statutory maximum sentence is increased to 20 years in federal prison if the illegal act was used to facilitate the commission of a “drug trafficking offense.”  These offenses include issuance of a passport without authority, making a false statement in a passport application or knowing use of a passport containing misstatements, forgery of a passport or false use of a forged passport, misuse of a passport, and visa fraud.[48]  In addition, 18 U.S.C. § 924(c)(1), using or carrying a firearm during certain crimes, provides the defendant “shall, in addition to the punishment prescribed for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . .”[49]

Finally, the aggravated felony conviction may trigger a sentence enhancement, i.e., an increase in the Base Offense Level under the United States Sentencing Guidelines.  The chief area in which this issue arises is a prosecution for illegal re-entry after deportation, in which the Guidelines formerly provided for up to a 16-level increase for defendants with one aggravated felony conviction suffered prior to deportation, and now provide for a graduated schedule of level increases depending on the seriousness of the aggravated felony.[50]

[46] INA § 277, 8 U.S.C. § 1327, as amended by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7346, 102 Stat. 4181, and as amended by the Immigration Act of 1990, Pub. L. No. 101-649, § 543, 104 Stat. 4978.

[47] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[48] 18 U.S.C. § 924(c)(1).

[49] 18 U.S.C. § 924(c)(1).

[50] U.S.S.G. § 2L1.2(b)(1)(A).