Aggravated Felonies

 

(G)  Sentence Enhancements.  A sentence enhancement is not considered to be part of the record of conviction, for purposes of determining the elements of the offense of which the noncitizen was convicted.[292]

Sentence enhancements based upon possession of a firearm have likewise not been found to alter the nature of the offense (i.e., making a burglary offense trigger removal as a firearms offense).[293]  These sentence enhancements do not constitute part of the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense for the purpose of determining whether a conviction triggers a ground of removal.[294]

 

At least within the Ninth Circuit, a recidivist sentence enhancement also cannot be used to determine whether the offense is to be considered a felony or a misdemeanor, as where the defendant is convicted of petty theft with a prior.[295]  Nor will a second simple possession conviction become an aggravated felony because it is a felony under federal law.[296] 

The Ninth Circuit has found that other sentencing enhancements can alter whether the court considers an offense to be a felony or a misdemeanor.[297]  The court found that an Oregon conviction for assault in the fourth degree, while not usually a felony, became a felony for immigration purposes upon a sentence enhancement based on the presence of a child when the offense was committed.  The key difference, the court found, was that “it is the facts of the offense, not the legal history of the offender, that gives rise to the maximum available sentence of more than one year.”[298]  It is unclear whether this case would could also be applied to say that a sentencing enhancement (i.e., for causing great bodily injury) could be used to alter the nature of the conviction (i.e., whether it is a crime of moral turpitude or not).

It can be difficult to determine whether a statute defines a sentence enhancement, or elements of an offense.  A federal conviction of violating 18 U.S.C. § 924(c)(1), using or carrying a firearm during and in relation to any crime of violence or drug trafficking crime, may be held to constitute a deportable firearms offense.  The BIA held that an analogous Florida enhancement statute constituted a firearms offense, since it was commonly treated as a separate offense, and stated in dictum the same was true of § 924(c)(1).[299]  The United States Supreme Court, however, since held that the aggravated sentence for illegal re-entry after deportation after aggravated felony conviction did not constitute a separate offense, but was rather a sentence enhancement that could be imposed even if the prior conviction was not pleaded or proven at trial.[300]  This case can be used to argue that a sentence enhancement does not alter the elements of the offense of conviction itself, for the purpose of assessing its immigration consequences.

 

The federal statute provides that for using or carrying a firearm during certain crimes, the defendant “shall, in addition to the punishment prescribed for such crime of violence or drug trafficking crime, be sentenced to a term of imprisonment of not less than five years . . . .”[301]  Under the reasoning of the Supreme Court, this may well constitute a sentence enhancement, rather than a criminal offense for which one may suffer a “conviction.” If so, it could not trigger removal as a firearms conviction.  Moreover, since it does not constitute a conviction at all, it might be that it does not in itself constitute a conviction for a drug offense, crime of violence, or aggravated felony, so cancellation of removal or INA § 212(c) relief would not be barred.

 

            The separate question whether a sentence imposed on account of a sentence enhancement is considered as forming part of the sentence for the conviction of the offense itself is discussed in § 3.62(B)(11), supra.

[292] Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002); see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for a recidivist does not define a separate crime).  See also United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant due to previous drunk driving convictions did not convert drunk driving offense to a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (firearms enhancement did not convert non-firearms offense into firearms offense); but see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001).

[293] Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (firearms enhancement did not convert non-firearms offense into firearms offense). 

[294] Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002); see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for a recidivist does not define a separate crime).  See also United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant because he had suffered previous drunk driving convictions did not convert drunk driving offense to a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001).  Cf. Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (noncitizen found guilty of Oregon “violation” not convicted for immigration purposes since proceeding does not require finding of guilt beyond a reasonable doubt).

[295] 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).  But see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001).

[296] Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (under federal law, a second possession conviction is not made a “felony” for this purpose by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), had been overruled by United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc)); United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. § § 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be “for” the “offense,” but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc)).

[297] United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir. Aug. 17, 2005).

[298] Id. at 911.

[299] Matter of Lopez-Amaro, 20 I. & N. Dec. 668 (BIA 1993), aff’d, Lopez-Amaro v. INS, 25 F.3d 986, 989-990 (11th Cir. 1994), cert. denied, 115 S.Ct. 1093 (1995) (Florida conviction of murder with a firearm, in violation of Florida Statutes § 775.087, required use of firearm as essential element of the offense, and therefore constituted a firearms offense, rather than a sentence enhancement).

[300] Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998). See Jones v. United States, 119 S.Ct. 1215 (1999) (18 U.S.C. § 2119 [carjacking statute] described the elements of several distinct criminal offenses, rather than mere sentence enhancements).

[301] 18 U.S.C. § 924(c)(1).