Aggravated Felonies

The definition of aggravated felony applies in two contexts.

(a)        In immigration proceedings, conviction of an aggravated felony triggers deportation, bars eligibility for some forms of relief, imposes requirements of mandatory detention, blocks federal review of some removal orders, and triggers other adverse consequences.  See Chapter 2, supra.

(b)        In federal criminal proceedings, a prior conviction of an aggravated felony will increase the maximum and Guideline sentence for the federal criminal offense of illegal re-entry after deportation,[386] and specific aggravated felonies appear in other criminal statutes.  

The U.S. Sentencing Guidelines currently impose an 8-level upward departure in the base offense level for illegal re-entry if a defendant has before deportation been convicted of an aggravated felony.[387]  However, a 16-level upward departure will be imposed if the conviction is for: (i) a drug trafficking offense with a sentence imposed in excess of 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a terrorism offense; (vi) human trafficking; or (vii) alien smuggling.[388]  Most of these offenses would also be considered aggravated felonies.

            Although the United States Supreme Court has suggested otherwise,[389] the BIA and a number of circuit courts have recognized that an offense that may not be an aggravated felony or a crime of violence for immigration purposes may be an aggravated felony or a crime of violence for sentencing purposes.  At least two courts have also found that while a categorical analysis must be applied to an offense to determine whether it is an aggravated felony for immigration purposes, a factual approach may be applied in some cases to decide this question in a sentencing context.[390]

[386] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[387] U.S.S.G. § 2L1.2(b)(1)(C) (2005).

[388] U.S.S.G. § 2L1.2(b)(1)(A) (2005).

[389] See Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 384 (Nov. 9, 2004) (suggesting that a criminal statute must be interpreted in a uniform manner, regardless of whether the statute is being examined in a criminal or immigration context).

[390] United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (disagreeing with United States v. Krawczak, 331 F.3d 1302, 1307 (11th Cir. 2003), the court held that the underlying facts of a prior conviction may be examined to determine whether the smuggling offense was committed for profit, and categorical approach is inapplicable); United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, as opposed to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case; a conviction of interstate transportation in aid of racketeering with the intent to promote cocaine and marijuana trafficking, as disclosed by the language of the charge, was therefore held to be a drug trafficking conviction for this purpose).