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.  Second, the aggravated felony prior may increase the statutory maximum prison sentence that may be imposed upon conviction, or trigger a sentence enhancement, i.e., an increase in the Base Offense Level, under the United States Sentencing Guidelines.  Certain federal convictions for illegal re-entry constitute aggravated felonies.  See § 5.57, infra.

There is a large body of case law on whether, and how, a noncitizen facing prosecution for illegal re-entry may collaterally attack the validity of the underlying criminal conviction, see Chapter 6, infra, and/or the underlying deportation.[195]  A full discussion of this topic is beyond the scope of this book.

[195] See, e.g., United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. Aug. 5, 2005) (although deportation was found retroactively improper in light of Leocal, noncitizen failed to meet requirements necessary to be allowed collaterally to attack deportation order, since noncitizen was not able to show he had been deprived of the opportunity for judicial review); United States v. Delacruz-Soto, 414 F.3d 1158 (10th Cir. July 12, 2005) (defendant cannot collaterally attack aggravated felony prior conviction during illegal re-entry prosecution); Romero v. INS, 399 F.3d 109 (2d Cir. Feb. 9, 2005) (petition for review denied over claim that due process rights were violated when counsel failed to inform the immigration court that the noncitizen was married to a United States citizen and eligible to adjust status); United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. Oct. 6, 2004) (California conviction for possession of a controlled substance was not an aggravated felony, therefore IJ erred in failing to inform respondent that he was eligible for voluntary departure; district court therefore erred in dismissing collateral attack of illegal re-entry conviction); United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. Aug. 22, 2003) (conviction and sentence for re-entry after having been deported under INA § 276(a), 8 U.S.C. § 1326(a), reversed since the defendant was denied due process at his deportation hearing, because he was eligible for relief but the Immigration Judge misadvised him to the contrary).