Aggravated Felonies

Several offenses, for which the actual sentence is irrelevant, 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 the two varieties of failure to appear in court in criminal cases (to answer a charge, or to appear for sentence).  See § § 5.47, 5.69, infra.

            For example, a RICO offense “for which a sentence of one year or more may be imposed,” constitutes an aggravated felony.[574]  The aggravated felony category also includes two different aggravated felonies of failing to appear (a) to answer a criminal charge “pursuant to a court order to answer or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed,”[575] or (b) for sentencing “if the underlying offense is punishable by imprisonment for a term of five years or more . . . .”[576]

            A conviction would constitute a safe haven, even if it meets these definitions, if the maximum possible sentence for the applicable offense is less than that specified in the definition.

            A sentence imposed on the basis of a recidivist sentence enhancement does not count as part of the sentence imposed for the offense itself, for purposes of meeting an aggravated felony sentence requirement.  See § 3.62(B)(11), supra.  This principle can be used to argue that a potential sentence that is a felony, or that is a certain number of years, only because of the operation of a recidivist sentence enhancement, does not count as satisfaction of a potential sentence aggravated felony requirement.[577]

            If the Constitution limits the sentence the criminal court can impose, immigration counsel could argue that the maximum legal sentence does not exceed the constitutionally permitted level.[578]  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 5.57(D) (2005).

[574] INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J) (emphasis supplied).

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

[576] INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (emphasis supplied).

[577] See Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (California offense of petty theft with a prior burglary conviction is not a crime for which a sentence of one year or more may be imposed for purposes of INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (CMT within five years of entry, punishable by one year or more)); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself); United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc) (two-year sentence imposed for a misdemeanor petty theft conviction, which was made a felony by a sentence enhancement based on a prior petty theft conviction, was not imposed “for” the theft offense).

[578] United States v. Villegas, 404 F.3d 355 (5th Cir. Mar. 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four-level enhancement to 18 U.S.C. § 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents).