There are two categories in which a conviction must be a felony conviction before it can constitute an aggravated felony conviction:

 

(1)  A conviction must be a felony before it can constitute a “crime of violence” under 18 U.S.C. § 16(b), where the statute has no element requiring threat or use of force, but the offense is considered a “crime of violence” because there is a substantial risk that force will be used in the commission of the offense.  See § 3.59, infra.

 

            Therefore, a conviction that is originally a misdemeanor, infraction, or other lesser level of offense, or which is later reduced to an offense less than a felony, will be a safe haven with respect to this portion of the crime of violence aggravated felony definition.  See § § 5.24, 6.22, infra.

 

(2)  Whether a state conviction of first-offense simple possession of a controlled substance, or other drug offense that would be considered a misdemeanor under federal law will be considered an aggravated felony drug trafficking offense, will depend on a number of factors, including the convicting state’s definition of “felony,” the controlling law on this issue in the jurisdiction in which the case arises, and whether the issue is raised in immigration proceedings, or in sentencing following prosecution for illegal re-entry.  See § § 3.60, infra, 6.21, infra.

 

            Depending on the law of the convicting jurisdiction, a conviction that is originally a misdemeanor or infraction (or other lesser level of offense), or which is later reduced to an offense less than a felony, may be a safe haven with respect to the drug trafficking aggravated felony definition.  See § § 3.66, 5.39, 6.21, infra.

 

            Federal regulations pertaining to eligibility for Temporary Protected Status define “felony” as follows:

 

            Felony means a crime committed in the United States, punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served. Under this exception for purposes of section 244 of the Act, the crime shall be treated as a misdemeanor.

. . .

            Misdemeanor means a crime committed in the United States, either:

 

            (1) Punishable by imprisonment for a term of one year or less,
regardless of the term such alien actually served, if any, or

            (2) A crime treated as a misdemeanor under the term ``felony’’ of this section.

 

For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor. [460]

 

It may be possible to use this definition, for its persuasive value, in other contexts, such as the question whether a state conviction for possession of a controlled substance constitutes an aggravated felony, under INA § 101(a)(43)(B), or whether a conviction constitutes a felony for purposes of constituting an aggravated felony crime of violence within the meaning of 18 U.S.C. § 16(b).

 

[460] 8 C.F.R. § 244.1.

Second Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - FELONY -- MASSACHUSETTS MISDEMEANOR CONVICTION OF ASSAULT ON OFFICER CONSTITUTED FELONY UNDER FEDERAL DEFINITION OF FELONY SINCE MAXIMUM TERM OF IMPRISONMENT EXCEEDED ONE YEAR
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts conviction of assault on police officer, under Massachusetts General Laws chapter 265, section 13D, with suspended two-year sentence to imprisonment, constituted felony for purposes of being a crime of violence aggravated felony, as defined under 18 U.S.C. 16(b), since the court applied the federal definition of felony, 18 U.S.C. 3559(a), and the maximum term of imprisonment for the offense of conviction was in excess of one year: "Regardless of how Massachusetts law defines it, we are obligated to apply the federal-law definition of a felony. Cf. United States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (observing that "[t]he immigration laws contain no provision ... indicat[ing] that they are to be interpreted in accordance with state law," and holding that whether a person has been convicted of an aggravated felony within the language of 8 U.S.C. 1326(b)(2) "is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State" (internal quotation marks omitted)).").

Third Circuit

FELONY - CALIFORNIA WOBBLER WITH NO PROBATION SENTENCE OF 365 DAYS IS A MISDEMEANOR FOR ALL PURPOSES UNDER CALIFORNIA LAW AND THEREFORE DOES NOT TRIGGER FEDERAL CAREER OFFENDER SENTENCE ENHANCEMENT
United States v. Bridgeforth, ___ F.3d ___, 2006 WL 786474 (9th Cir. Mar. 29, 2006) (California conviction of assault with a deadly weapon, in violation of Penal Code 245(a)(1) or (2), in which probation was terminated and the court imposed a sentence of 365 days in county jail, was a wobbler which then became a misdemeanor "for all purposes" under Penal Code 17(b)(1), and therefore did not subject the defendant to the federal career offender enhancement of U.S.S.G. 4B1.1-4B1.2, because it was a misdemeanor under California law), following United States v. Robinson, 967 F.2d 287, 292-93 (9th Cir. 1992) (California wobbler with imposition of sentence suspended, and three years' probation on the condition of service of nine months in jail, did not constitute a judgment imposing a punishment of imprisonment for a term not exceeding one year, and so did not render the conviction a misdemeanor under California law).

Fifth Circuit

FELONY CLASSIFICATION
United States v. Alfaro-Hernandez, __ F.3d __ (5th Cir. Jun. 16, 2006) (felony classification of defendants underlying offense, for purposes of sentence imposed upon revocation of defendant's supervised release on a conviction for transportation of an illegal alien, is determined by the underlying statute of conviction, not the Guidelines range as calculated by the district court). http://caselaw.lp.findlaw.com/data2/circs/5th/0540327cr0p.pdf

Tenth Circuit

FELONY/MISDEMEANOR DEFINITION
United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado conviction for assault in the third degree, in violation of Colo.Rev.Stat. 18-3-204, although labeled by the State as a misdemeanor, is a felony for illegal re-entry sentencing purposes since the maximum possible punishment for the offense is 18 months).

Other

RESOURCES " FEDERAL CONVICTIONS " CHART OF FELONY AND MISDEMEANOR OFFENSES
Felony and Misdemeanor Federal Chart as prepared by Federal Defender office: http://ms.fd.org/maxpenalties/maxpenalties.pdf

CRIMINAL DEFENSE " SENTENCE " FEDERAL MISDEMEANOR STATUTES
http://xa.yimg.com/kq/groups/3815052/422498396/name/Federal_Misdemeanor_Statutes.pdf (Aug. 18. 2011) (comprehensive list of federal misdemeanors carrying maximum possible sentence of one year in custody).

AGGRAVATED FELONY " ONE YEAR SENTENCE IMPOSED " WASHINGTON STATE MISDEMEANOR MAXIMUM NOW 364 DAYS
In Apr., 2011, the Washington State Legislature redefined the maximum sentence for a gross misdemeanor to 364 Days, one day lower than the one-year sentence imposed required for many aggravated felonies, see N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 10.66 (2007), and one day lower than the maximum required to make a single crime of moral turpitude deportable. INA 237(a)(2)(A)(i). This law will not go into effect until 90 days after the end of the 2011 legislative session, but it is worth arguing now that Washington judges should stop imposing 365-day sentences for gross misdemeanors. In arguing for this, counsel can quote the legislative intent section of the bill which states: The legislature finds that a maximum sentence by a court in the state of Washington for a gross misdemeanor can, under federal law, result in the automatic deportation of a person who has lawfully immigrated to the United States, is a victim of domestic violence or a political refugee, even when all or part of the sentence to total confinement is suspended. The legislature further finds that this is a disproportionate outcome, when compared to a person who has been convicted of certain felonies which, under the state's determinate sentencing law, must be sentenced to less than one year and, hence, either have no impact on that person's residency status or will provide that person an opportunity to be heard in immigration proceedings where the court will determine whether deportation is appropriate. Therefore, it is the intent of the legislature to cure this inequity by reducing the maximum sentence for a gross misdemeanor by one day. For courts that are unwilling to sentence persons to less than 365 days, counsel can make a record by citing State v. Grayson, 154 Wn.2d 333 (2005). In Grayson, the court categorically denied granting DOSA sentences, upon the belief that there was insufficient funding for the DOSA program for it to be effective. This was found to be an abuse of discretion. The Supreme Court held that a trial court abuses discretion when it fails to consider alternative sentences. Id. at 342; see also State v. Garcia-Martinez, 88 Wn.App. 322, 330 (1997). New Mexico, Wisconsin and Illinois are other states that also have 364-day maximum sentences for some misdemeanors. Thanks to Jonathan Moore and Ann Benson.