There is a common misperception 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” defense or requirement at all.  Even the most minor of these latter offenses will constitute aggravated felonies regardless of how small a sentence is imposed.  See § 3.64, infra.

 

For example, drug crimes do not depend upon the sentence imposed for classification as aggravated felonies.  Under the decision of Matter of Yanez,[459] 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.  See § 3.60, infra.  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.

 

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.  See § 3.63, infra.

 

            A third category of offenses on the list are defined as aggravated felonies on the basis of the potential or maximum possible sentence that may be imposed either for the particular offense or some related offense: organized crime (RICO) offenses and two varieties of failure to appear in court in criminal cases.  See § 3.65, infra.

[459] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002) (en banc).

Fifth Circuit

AGGRAVATED FELONY - THEFT OFFENSE - PETTY THEFT WITH A PRIOR CONVICTION - SENTENCE ENHANCEMENT
Mutascu v. Gonzales, __ F.3d __ (5th Cir. Apr. 3, 2006) (California conviction of petty theft with a prior, in violation of Penal Code 666, with one-year sentence imposed is an aggravated felony theft offense), rejecting United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002).
http://caselaw.lp.findlaw.com/data2/circs/5th/0460708cv0p.pdf