For an offense to be a crime of violence under 18 U.S.C. § 16(b), it must be a felony, rather than a misdemeanor or other more minor offense.[167]  For this purpose, if the maximum possible custodial sentence is one year or less, the conviction will be considered a misdemeanor under the federal definition of felony.[168]

 

            A conviction that otherwise qualifies as a crime of violence under 18 U.S.C. § 16(b) will not be an aggravated felony under this subcategory if it is (a) not a felony conviction originally, or is (b) later reduced to a misdemeanor or other lesser level of offense.[169]  This reasoning holds true not only for immigration cases, but also for illegal re-entry sentencing cases.[170]

 

            A conviction that is a felony only because of the operation of a recidivist sentence enhancement has been held not to be a felony in the Ninth Circuit.[171]  On the other hand, the elevation of a misdemeanor to a felony because of the operation of a conduct-based sentence enhancement, rather than one based on prior convictions, will be considered a felony conviction in the Ninth Circuit.[172]

 

            An argument has been suggested that the maximum possible sentence for an offense, for purposes of determining whether it is a felony conviction under the federal “more than a year” test, is the maximum legal sentence, either applying applicable sentencing guidelines or the constitutional limitations enunciated by the Supreme Court in Booker.[173]  The Ninth Circuit, however, has rejected this argument, holding that the statutory maximum, not the sentence range under applicable sentencing guidelines, determines whether a given conviction qualifies as a felony for federal sentencing purposes.[174]

[167] 18 U.S.C. § 16(b) specifies that the offense must be “any other offense that is a felony. . . .”  For example, a federal district court has held that a California conviction for possession of a dangerous weapon cannot constitute a crime of violence under 18 U.S.C. § 16(b) because it encompasses misdemeanors.  United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185, 1190 (D. Kansas 2000).

[168] 18 U.S.C. § 3559(a)(5).  See § 3.57, supra.

[169] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).  See also LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[170] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.23 (2005).  But see United States v. Gonzalez-Tamariz, 310 F3d 1168 (9th Cir. 2002) (no error in applying 16-level enhancement to sentence for illegal re-entry because battery causing substantial bodily harm meets federal definition of aggravated felony regardless of state law label as a misdemeanor, and aggravated felony definition plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is at least one year).

[171] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[172] 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).

[173] United States v. Booker, 125 S.Ct. 738 (2005).

[174] United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal.Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(B) - FELONY DEFINITION
Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves as an open question whether the term "felony" for purposes of 18 U.S.C. 16(b) is defined by state label or term of imprisonment exceeding one year). See Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir.2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir.1998).

On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).