(B)  State Convictions.  If the conviction is rendered in state court, the question of whether a conviction is a “felony” for immigration purposes is more complex.  There are three factors that can contribute to the conclusion that a conviction is a felony conviction: (1) the level of the offense if it had been prosecuted in federal court (“hypothetical federal prosecution test”); (2) whether the convicting jurisdiction labels it as a felony or misdemeanor; and (3) the maximum sentence to custody possible for the conviction under the law of the jurisdiction of conviction.

 

In some states, such as Arizona and California, it is possible for the sentencing court to set the level of the offense as a felony or a misdemeanor.  If the court sets the level of the offense as a misdemeanor, that offense will be “labeled” a misdemeanor.

 

            Similarly, the setting of the level of the offense as a misdemeanor rather than as a felony can affect the maximum possible custodial sentence — the second factor that can contribute to a conclusion that a conviction is a misdemeanor rather than a felony.  In states in which the maximum sentence for a misdemeanor is one year or less in custody, setting the level of the offense as a misdemeanor can create a conviction with a maximum sentence of one year or less, which constitutes a misdemeanor sentence under the federal standard in which an offense is a misdemeanor if the maximum is one year or less, and a felony only if the maximum is in excess of one year.

 

            The third factor — whether the offense would have been a misdemeanor rather than a felony if it had been prosecuted in federal court — is unaffected by state court action in designating a conviction as a misdemeanor rather than a felony.

 

Taking these factors together, there are eight logical possibilities:

 

            (1)  Federal Felony; State Felony Label; Maximum Sentence In Excess of One Year.  Under these circumstances, both the state and federal definitions of felony have been met, and the only possible conclusion is that this conviction is a felony for immigration purposes. [465]

 

(2)  Federal Felony; State Felony Label; Maximum Sentence of One Year or Less.  This conviction would be a not be considered a felony under the general federal definition.  This permutation should therefore not be considered a felony for purposes of the crime of violence definition, under 18 U.S.C. § 16(b).  See § 5.23, infra.  Additionally, this should not be considered a felony in the drug context, since the Controlled Substances Act defines a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.”[466]  See § 3.59, supra.  Respondent can also make a strong argument in favor of a uniform federal standard, which would be achieved by applying the federal definition of a misdemeanor as an offense with a maximum sentence of one year or less.

            (3)  Federal Felony; State Misdemeanor Label; Maximum Sentence in Excess of One Year.  In this situation, the conviction is a misdemeanor under the state definition, but would be a felony if it was a federal conviction with the same maximum in excess of one year.  “Where federal and state law classify the offense differently, the Board of Immigration Appeals (BIA), apparently, has no set rule.  In Matter of Ramos, the BIA did not address whether a misdemeanor Massachusetts DUI offense for which the respondent received two years imprisonment was a felony for purposes of 16(b) since the BIA held it was not a crime of violence for other reasons.”[467]  Arguably, however, a conviction under this permutation that would otherwise fall within 18 U.S.C. § 16(b) would be considered a “felony” for immigration an sentencing purposes because, despite the state label, the sentence meets the general federal[468] definition.[469]

 

            The Third Circuit held in Francis v. Reno that where state law categorizes an offense as a misdemeanor, it does not meet the definition in 18 U.S.C. § 16(b). The BIA had employed the federal definition of felony to conclude that Francis’ conviction for a Pennsylvania misdemeanor was a felony under federal law since the maximum sentence was more than one year.  The Third Circuit reversed the BIA.  In many contexts, a circuit court will defer to an administrative agency’s decision unless the interpretation is unreasonable or contrary to statute. In this case, however, the circuit court declined to accord Chevron deference to the BIA stating, “the BIA is not charged with administering 18 USC § 16, and that statute is not transformed into an immigration law merely because it is incorporated into the INA.”[470]

 

            The Third Circuit applied principles of statutory construction to reason that since Congress did not use the term “felony” in § 16(a), Congress intended to include felonies and misdemeanors under subsection (a), but only intended to include certain felonies under subsection (b). “Congress was obviously aware that the definition of a “felony” varies from jurisdiction to jurisdiction, and it could certainly have defined an “aggravated felony” under the INA to include any state offense that would be classified as a felony under federal law.  It did not do so.” The court cited decisions from the Eighth Circuit and District of Kansas to support the argument that state classification should govern.

 

            The government argued that interpreting 18 U.S.C. § 16(b) in accordance with the state definition of felony would lead to a lack of uniformity.  The Third Circuit rejected the government’s argument to use the federal definition of felony.  The court pointed out that using the federal definition does not eliminate the variation in maximum penalties from jurisdiction to jurisdiction.  For example, one state might impose a maximum sentence of six months for an offense, which would not be a felony under the federal definition, while another might impose a maximum sentence of two years for the same offense, which would be a felony under the federal definition.  Also, the court explained that using the federal definition of felony as an offense for which the maximum sentence exceeds one year fails to give effect to the language of subsection (F) which incorporate the crime of violence definition at 18 U.S.C. § 16 as an offense for which the term of imprisonment is at least one year.  Lastly, the court stated that its interpretation follows the rule of lenity, which requires the court to adopt the less harsh interpretation of an ambiguous statute in favor of the noncitizen.[471]

           

            In the drug context, the respondent can argue that the conviction occurred in state court, and therefore the state definition of the level of the offense must govern.  A number of decisions lend some support to this position.[472]

 

(4)  Federal Felony; State Misdemeanor Label; Maximum Sentence of One Year or Less.   Under this permutation, the state treats as a “misdemeanor” what would be considered a “felony” if the defendant were prosecuted in federal court.  There is no reason to believe that, in the crime of violence context, this would not be considered a misdemeanor for immigration purposes.[473]  See § 5.40, infra.  One circuit has held, however, that this permutation is a “felony” for illegal re-entry sentencing (but not immigration) purposes.[474]

 

            (5)  Federal Misdemeanor; State Felony Label; Maximum Sentence In Excess of One Year.  Under this permutation, the state treats as a “felony” what would be considered a “misdemeanor” if prosecuted in federal court.  For purposes of the aggravated felony crime of violence definition, such an offense should be considered a felony.  In the context of aggravated felony drug offenses, however, the courts are split as to whether this permutation would result in a “felony” for immigration purposes.  The courts are also split (differently) on whether this permutation would result in a felony for sentencing purposes upon prosecution for illegal re-entry.  See § 5.40, infra.

 

            (6)  Federal Misdemeanor; State Felony Label; Maximum Sentence of One Year or Less.  This situation, though rare, occurs where the state conviction uses a definition of “felony” that differs from the federal definition, and includes under the “felony” label offenses punishable by a year or less imprisonment.  Because of the general federal definition of “felony,”[475] a conviction under this permutation that otherwise falls within 18 U.S.C. § 16(b) should not be considered an aggravated felony crime of violence.  A recent case held that a conviction under this permutation will also not be considered an aggravated felony drug offense.[476]

 

(7)  Federal Misdemeanor; State Misdemeanor Label; Maximum Sentence in Excess of One Year.  This situation may arise, again, where the state law draws a different distinction between “felony” and “misdemeanor” than does the federal law.  In the context of a conviction that otherwise falls within 18 U.S.C. § 16(b), a conviction under this permutation arguably would constitute a “felony” for immigration (and sentencing) purposes since the federal definition of “felony”[477] has technically been met, even if the offense is labeled a misdemeanor.

 

In the drug context, the Fifth Circuit has held that this permutation results in a felony offense, and thus an aggravated felony.  Ignoring the state “misdemeanor” label, the court found that as long as the maximum possible punishment was in excess of one year, the offense would be considered a “felony.”[478]  The court looked to 21 U.S.C. § 802(44), defining a “felony” for purposes of the CSA as an offense punishable in excess of one year, to find that this conviction would qualify as a felony.

 

The Fourth Circuit, on the other hand, has held that a Maryland conviction of simple possession, labeled a misdemeanor by the state, but punishable by up to four years imprisonment, was not a “felony,” and therefore not an aggravated felony for sentencing purposes, since the sentencing context requires the court to look to the definition of “felony” in 21 U.S.C. § 802(13), which is wholly dependent upon the state label.[479]

 

Even among the “majority” courts, there is a split on how “felony” should be defined.  Other courts following the majority rule could find a conviction under this permutation to be a “misdemeanor” if they decide to give more weight to the label (by following 21 U.S.C. § 802(13), than the sentence [following 21 U.S.C. § 802(44)]).

 

Under the minority rule, applying the “hypothetical federal felony” approach, a conviction under this permutation would probably be considered a “felony.” See § § 5.39-5.41, infra.

 

(8)  Federal Misdemeanor; State Misdemeanor Label; Maximum Sentence of One Year or Less.  Under these circumstances, the state considers the conviction to be a misdemeanor, and the conviction is also only a misdemeanor under the federal definition cited above.  Therefore, the only possible conclusion is that this conviction is a misdemeanor for immigration purposes. [480]

Looking at each of these permutations, whether the offense constitutes a “felony” for purposes of 18 U.S.C. § 16(b) should depend entirely on the sentence maximum, and does not depend upon the federal or state label. 

 

In the drug context, the courts are split over the third, fifth, and seventh permutations, and the result may depend upon whether the issue is raised in the context of immigration proceedings or sentencing following prosecution for illegal re-entry.  Looking at a general pattern, however, it would appear that the odd numbered permutations are more likely to be aggravated felonies, while the even numbered permutations are more likely not to be aggravated felonies.  This would mean that it is the maximum possible punishment, rather than any federal or state label, that controls.  This analysis would seem to be supported by the Sixth Circuit’s reasoning in Liao, and the Fifth Circuit’s reasoning in Sanchez-Villalobos.

 

In the Ninth Circuit, the maximum possible punishment for the offense is determined without regard to any recidivist-based sentence enhancement.  On the other hand, a non-recidivist based sentence enhancement, for example, one based on the defendant’s conduct, can transform a conviction into a felony conviction and increase the maximum possible punishment.  See § 3.62(B)(11), infra.

 

[465] See, e.g., Matter of Malta, 23 I. & N. Dec. 656 (BIA 2004); Chery v. Ashcroft, 347 F.3d 404, (2d Cir. 2003); Omar v. INS, 298 F.3d 710, 717 (8th Cir. 2002).

[466] 21 U.S.C. § 802(44) (emphasis added).

[467]  Sandy Lin, What is a Felony for Purposes of the Crime of Violence Definition in 18 USC § 16(b), p. 2 (National Lawyers Guild National Immigration Project Memorandum (2004)), citing Matter of Ramos, 23 I. & N. Dec. 336 (BIA 2002) (holding offense was not a crime of violence because it did not involve substantial risk that physical force may be used not because of the classification of the offense).

[468] Francis v. Reno, 269 F.3d 162 (3d Cir. 2001).

[469] 18 U.S.C. § 3559(a)(5).

[470] Id. at 168.

[471] Sandy Lin, What is a Felony for Purposes of the Crime of Violence Definition in 18 USC § 16(b), p. 2 (National Lawyers Guild National Immigration Project Memorandum (2004), (citations omitted).

[472] E.g., Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002); see Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (en banc).

[473] See, e.g., Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (en banc) (second state misdemeanor simple possession conviction held to be a misdemeanor for immigration purposes, even though a second simple possession conviction would be a felony under federal law).

[474] United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second misdemeanor simple possession conviction under New York law an aggravated felony for sentencing purposes since the offense would be a felony under federal law).  See also Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. 2003), decision and order vacated on other grounds, 2003 WL 23989925 (unpublished).

[475] 18 U.S.C. § 3559(a)(5).  Compare 18 U.S.C. § 3559(a)(6) (a Class A misdemeanor is an offense with a maximum sentence of “one year or less but more than six months”).

[476] Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

[477] 18 U.S.C. § 3559(a)(5).

[478] United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. June 7, 2005) (Colorado misdemeanor simple possession, in violation of Colo.Rev.Stat. § 18-1.3-501(1), is a “felony” under the CSA, and therefore an aggravated felony for sentencing purposes).

[479] United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005).

[480] In Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002), for example, the Board of Immigration Appeals (BIA) held that the respondent’s conviction for an offense categorized as a misdemeanor under Connecticut and federal law could not constitute a crime of violence under 18 U.S.C. § 16(b), although the BIA did treat it as an aggravated felony under 16(a). Similarly, in Matter of Small, 23 I. & N. Dec. 448 (BIA 2002), the BIA noted that a New York misdemeanor conviction for sexual assault of a minor, which was punishable by imprisonment of one year or less, did not come within the definition of § 16(b) because § 16(b) covers only felony offenses.

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.