Aggravated Felonies

 

A safe haven sentence imposed of less than one year can be achieved in several ways:

 

(a)  The original sentence imposed can be less than one year,

 

(b) the original sentence of one year or more can be vacated and a new sentence imposed of less than one year, see § 3.66, infra; or

 

(c)  the original sentence of one year or more can be reduced to a new sentence of less than one year.  See § 3.66, infra.

 

To achieve a safe haven sentence of less than one year, if an offense is on the “one-year” list, counsel must ask the court (1) to suspend imposition of sentence (not merely suspend “execution” of sentence), so that no prison sentence is ordered, and to require service of 360[549] days in custody or less as a condition of probation, or (b) to impose a sentence shorter than one year as a straight judgment.

 

            A number of techniques exist by which to obtain formal sentences of 360 days or less, yet still give the prosecution actual custody time equivalent to far more serious sentences.  These include:

 

(1)  Waive presentence custody credits.  If the defendant has served eight months before sentence, and waives those credits, s/he can receive a “formal” sentence of 360 days while actually serving roughly the same amount of time s/he would have served on a two-year sentence (depending on the rate at which good conduct credits are earned for the offense in the jurisdiction).

 

(2)  Waive future conduct credits.  If the defendant waives future credits, and receives a nominal sentence of 360 days in custody, s/he will actually serve 360 days.  In a jurisdiction where s/he would receive 50% credits off a prison sentence, s/he would actually serve about the same number of days in custody on a 360-day sentence as s/he would have served on a nominal two-year prison sentence.

 

(3)  Counts can be stacked consecutively so long as each fails to qualify independently as an aggravated felony.  For example, a defendant could receive 360-day sentences on four different theft convictions, to run consecutively, without receiving a “sentence imposed” of one year or more on any single count.  No single count would be considered to be an aggravated felony conviction, and the counts are not aggregated for this purpose.

 

(4)  Use of Sentence Enhancements. Additionally, if a greater sentence can be imposed under an enhancement statute, rather than for the offense itself, that portion of the sentence will not count for aggravated felony purposes.  This is the rule in the Ninth Circuit under United States v. Corona-Sanchez,[550] which held that a California felony conviction of petty theft with a prior petty theft conviction, where the defendant received a two-year prison sentence, did not constitute an aggravated felony conviction under 8 U.S.C. § 1101(a)(43)(G) for purposes of increasing the sentence for unlawful re-entry after deportation.  The reasoning was that the conviction cannot constitute a “theft offense” for which the sentence of imprisonment was one year or more because the maximum sentence for petty theft is six months.  The court held that California Penal Code § 666, which makes a petty theft conviction punishable by up to three years in state prison if the defendant had suffered a previous petty theft conviction, was not a part of the “offense” in this case, but was instead a recidivist sentencing enhancement.  Since it was not part of the offense of conviction, the two-year sentence imposed under this sentence enhancement could not be considered as having been imposed for the “offense” of conviction.[551]  

 

        This same reasoning applies to distinguish the elements of the offense itself, not only from the provisions of recidivist sentence enhancements that were at issue in Corona-Sanchez, but from all sentence enhancements, even if they are based on conduct rather than a prior conviction.[552] 

 

Other circuits may not agree.[553]

 

            Using these techniques, it is possible to give the prosecution and court the equivalent, in terms of actual custody, of one year or more in prison, while still avoiding a “sentence imposed” of one year or more.

 

(5)    Reduction from Felony to Misdemeanor.  If the criminal court reduces the level of the offense from felony to misdemeanor, that reduction is binding on the immigration courts.[554]  In modifying a sentence, the state court is determining the nature of the conviction pursuant to state law.[555]  See § 6.19, infra.

 

[549] A term of 360 days custody is recommended, rather than 364, because it allows for extra days of custodial confinement upon the revocation of probation or parole without triggering “one year” for immigration purposes.  So long as no further custody is ordered, however, a sentence of 364 days under the conditions set forth will prevent the conviction from being deemed an aggravated felony. 

[550] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). But see United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same).

[551] California Penal Code § 490. 

[552] Corona-Sanchez, supra, 291 F.3d at 1209 (“Examining the crime itself, rather than any sentencing enhancements, is also consistent with the legislative history of defining aggravated felonies under 8 U.S.C. § 1101(a)(43)”) (emphasis added).

[553] United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).

[554] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give consideration to state court reduction of California “wobbler” offense from a felony to a misdemeanor offense. Reductions of sentences by state courts are qualitatively different from state expungements).

[555] See also Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999).