A conviction must be a “felony” before it can constitute a “crime of violence” under 18 U.S.C. § 16(b), so as to fall within the crime of violence aggravated felony definition.[490]  See § 5.24, infra.

[490] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). 

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(B) - FELONY DEFINITION
Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves as an open question whether the term "felony" for purposes of 18 U.S.C. 16(b) is defined by state label or term of imprisonment exceeding one year). See Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir.2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir.1998).

On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

Tenth Circuit

FELONY/MISDEMEANOR DEFINITION - SENTENCING CONTEXT
United States v. Hernandez-Garduno, __ F.3d __ (10th Cir. Aug. 21, 2006) (although labeled by Colorado state, conviction of a "misdemeanor" punishable by a maximum of 18 months imprisonment is a "felony" for purposes of illegal re-entry sentencing enhancement that requires conviction of a "felony" crime of violence).