A conviction for a crime of violence under 18 U.S.C. § 16(a) or (b) only becomes an aggravated felony only if a sentence of one year or more is imposed.  See § § 3.55-3.63, supra, for a discussion of this requirement. 

 

            Criminal defense counsel should ensure that the defendant does not receive a sentence imposed of one year or more for any count that is considered a “crime of violence.”  For more detailed discussion of aggravated felony sentence imposed, see § 3.32, supra.

 

            Section 16(a) of Title 18, United States Code does not require an offense to be a felony in order to be classified as a crime of violence under this subdivision.  Thus a misdemeanor crime of violence under § 16(a) will trigger removal as an aggravated felony as long as a sentence of one year or more is imposed.[107]  Section 16(b), on the other hand, requires that the offense be a felony.  See § 5.24, infra.

 

The aggravated felony crime of violence definition formerly required a sentence imposed of five years.  IIRAIRA reduced the sentence imposed requirement to one year in 1996.  This reduced sentence requirement is applied retroactively to convictions predating IIRAIRA’s effective date.[108]

[107] United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. Nov. 18, 2002) (Nevada conviction of battery causing substantial bodily harm, in violation of Nev.Rev.St. § 200.481, constituted an aggravated felony crime of violence with one-year sentence imposed, regardless of its state law label as a misdemeanor with one-year maximum possible sentence); accord, United States v. Urias-Escobar, 281 F.3d 165, 168 (5th Cir. 2002), cert. denied, 122 S.Ct. 2377 (2002); United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. 2000); United States v. Marin Navarette, 244 F.3d 1284, 1286-87 (11th Cir. 2001); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002) (quoting United States v. Graham, 169 F.3d 787, 792 (3d Cir. 1999).

[108] See § 3.9, supra.

First Circuit

AGGRAVATED FELONY - FELONY - SENTENCE IMPOSED OF SIX MONTHS DETERMINES THE LEVEL OF THE OFFENSE WAS A MISDEMEANOR FOR FEDERAL CAREER CRIMINAL CRIME OF VIOLENCE SENTENCE PURPOSES, BECAUSE THAT SENTENCE WOULD NOT HAVE BEEN LAWFUL IF THE OFFENSE HAD BEEN A FELONY
United States v. Simo-Lopez, ___ F.3d ___, 2006 WL 3759302 (1st Cir. Dec. 22, 2006) (Puerto Rico conviction for aggravated battery, in violation of P.R. Laws Ann. tit. 33, 4032(e), was considered a misdemeanor under Puerto Rico law because the court imposed a sentence of six months confinement, which could only have lawfully been imposed on account of a misdemeanor conviction, and the conviction therefore did not qualify as a "crime of violence," under USSG 2L1.2 which requires a conviction to be a felony under the law of the jurisdiction of conviction before it can be considered a felony for federal illegal reentry sentence purposes of imposing a 16-level increase in the offense level). http://laws.lp.findlaw.com/1st/052656.html