Safe Havens

(B)  Sentences Imposed for Sentence Enhancements Do Not Count.  Any sentence imposed on account of a sentence enhancement is not considered as forming part of the sentence for the conviction of the offense itself, at least in the Ninth Circuit.[127]

The general rule is that a sentence enhancement does not form part of the record of conviction for the purpose of defining the offense of conviction.  A conviction of an offense which does not fall within the category of firearms offenses, according to the elements of the offense, does not become a firearms offense by reason of a sentence enhancement increasing sentence if a firearm was used by any principal during commission of the offense.[128]

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 18 U.S.C. § 924(c)(1).[129]  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.[130]

            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 . . . .”[131]  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.[132]  Moreover, since it does not constitute a conviction at all, it could not in itself constitute a conviction for a drug offense, crime of violence, or aggravated felony, so cancellation of removal or relief under INA § 212(c), 8 U.S.C. § 1182(c) would not be barred.

[127] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § § 484(a), 666, with a sentence imposed of two years state prison, only resulted in a sentence imposed of six months, since the offense of conviction was petty theft, with a statutory maximum of six months, and the felony prison sentence was imposed solely as a result of the recidivist sentence enhancement, triggered by a prior conviction, which did not form part of the sentence imposed for the petty theft offense itself, and the defendant therefore did not have a sentence imposed of one year or more for a theft offense and was therefore not convicted of an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).)

[128] Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (California conviction of attempted murder, in violation of Penal Code § § 187, 664, not considered a firearms offense even though the sentence was enhanced under Penal Code § 12022(a) because one principal used a firearm in the commission of the offense).  But see Matter of KL, 20 I. & N. Dec. 654 (BIA 1993)(BIA distinguished Rodriguez-Cortez to find federal conviction for use of firearm in connection with crime of violence or drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), was a distinct offense rather than a sentence enhancement, and therefore constituted firearms offense);  Matter of PF, 20 I. & N. Dec. 661 (BIA 1993) (Florida conviction of armed burglary with a firearm, in violation of Florida Statutes § § 810.02, 812.13, required use of firearm as essential element of the offense, and therefore constituted a firearms offense, rather than a sentence enhancement); 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).

[129] Matter of Lopez-Amaro, 20 I. & N. Dec. 668 (BIA 1993).

[130] 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).

[131] 18 U.S.C. § 924(c)(1).

[132] INA § 241(a)(2)(C), 8 U.S.C. § 1231(a)(2)(C).