Any sentence enhancements to be included as part of the disposition must also be identified, and their effect on sentence computed.  If the sentence enhancement is considered to be part of the nature and elements of the conviction, it can alter the deportation consequences.  The general rule, however, is that a sentence enhancement is not considered to form part of the elements of the offense of conviction, and the facts established by the sentence enhancement therefore cannot be considered in determining whether the minimum conduct established by the conviction falls within a ground of deportation.  For example, a conviction of a non-firearms offense with a firearms enhancement does not trigger deportation as a firearms conviction.[154]

 

            Similarly, a sentence imposed on account of a sentence enhancement, rather than for the offense of conviction itself, does not count as part of the sentence imposed for purposes of determining the deportability of a conviction.  See § 5.57(B), supra.

[154] Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA Oct. 19, 1992) (conviction of five counts of attempted murder in the second degree, where sentence under one count was enhanced pursuant to section 12022(a) of the California Penal Code because a codefendant was armed with a firearm in the attempted commission of the felony, is not a conviction of a firearm offense under California law and is not deportable under INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), as an alien convicted at any time after entry of a firearm violation, and respondent is eligible to apply for a waiver of inadmissibility under section 212(c) of the Act, INA § 212(c), 8 U.S.C. § 1182(c) (Supp. III 1991).

BIA

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

SENTENCE ENHANCEMENT - RECIDIVISM AS AN ELEMENT OF CONVICTION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 389 (BIA Dec. 13, 2007) (en banc) ("facts leading to recidivist felony punishment, such as the existence of a prior conviction, do not qualify as "elements" in the traditional sense. Almendarez-Torres v. United States, 523 U.S. 224, 228-35 (1998).").

SENTENCE - RECIDIVIST SENTENCE ENHANCEMENT
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 393 n.8 (BIA Dec. 13, 2007) (en banc) ("Aliens in removal proceedings have no constitutional right to appointed counsel, so allowing facts about recidivism to be determined by an Immigration Judge in the first instance could raise due process concerns. Chewning v. Cunningham, 368 U.S. 443, 447 (1962) (finding that due process requires the appointment of counsel to a defendant charged as an habitual offender under Virginia law in light of the complexity of the recidivism issue).").

RECORD OF CONVICTION - ELEMENT OF OFFENSE - SENTENCE ENHANCEMENT - SENTENCE FACTOR LAWFULLY FOUND BY A PREPONDERANCE OF THE EVIDENCE DOES NOT CONSTITUTE AN ELEMENT OF THE OFFENSE UNDER APPRENDI
The impact of Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007), holding certain sentence enhancements to be equivalent to elements of the offense for purposes of determining the nature of the offense for immigration purposes, does not apply where a sentence enhancement has been found true by a mere preponderance of the evidence, whether it be found by a court or jury. This is because Apprendi v. New Jersey, 530 U.S. 466 (2000), on which Martinez-Zapata is based, held that a sentencing court's finding by a preponderance of the evidence of the truth of a sentence enhancement that increased maximum penalty of offense was unconstitutional in violation of the jury trial guarantee of the United States Constitution because it constituted an element of the offense under that provision.

   This offers a number of favorable arguments counsel can use to argue that a given sentence enhancement does not constitute an element of the offense for purposes of determining the nature of the offense under immigration law. The BIA itself recognized important limitations on its decision.

   Importantly, we point out that Apprendi and its progeny do not encompass all sentence enhancements; the Apprendi analysis will not result in all sentence enhancements being the equivalent of "elements" of an offense. Rather, those post-Apprendi enhancements that may still permissibly be found by a preponderance of the evidence by a sentencing judge, including those under the United States Sentencing Guidelines and many State sentencing schemes, will not be the equivalent of an "element" of an offense. See, e.g., Cunningham v. California, 127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S. 584 (2002). It is crucial that an examination of the specific statutory sentencing scheme be conducted in order to make the determination. To equate to an element it must be shown that, under the law of the convicting jurisdiction, a sentencing factor had to be proved to a jury beyond a reasonable doubt if it was not admitted by the defendant.

Martinez-Zapata, supra, at 430. In particular, a number of limitations and arguments emerge from this decision:

   (1) Martinez-Zapata cannot retroactively convert a sentence enhancement found by a mere preponderance into an element of the offense. Many sentence enhancements imposed prior to June 26, 2000, the date on which Apprendi was decided, were imposed after a sentencing judge found the sentence enhancement true by a preponderance of the evidence. These sentence enhancements cannot constitute elements of the offense under Martinez-Zapata, because it was not in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. Martinez-Zapata expressly states that its rule (like its rationale) applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007). "The holding in Matter of Rodriguez-Cortes also continues to apply in pre-Apprendi sentencing determinations." Matter of Martinez-Zapata, supra, at 429 (BIA 2007).

   (2) Even after Apprendi, it took some time before courts implemented that decision, so it is important to verify that the sentence enhancement in the case under consideration was in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. If not, the sentence enhancement does not in fact constitute an element of the offense. Even today, because of the ongoing confusion in this area, many courts are not in fact implementing Apprendi correctly. The courts' learning process is sometimes slow.

   (3) Be alert for instances in which the sentence enhancement was found by a preponderance, rather than beyond a reasonable doubt. In jury cases, check the jury instructions relating to the sentence enhancement to verify the burden of proof was in fact beyond a reasonable doubt. The BIA has cautioned that the inquiry in these cases is very much dependent on the exact mechanics of the statutes in the jurisdiction of conviction:

However, not all facts bearing on sentencing are required to be found beyond a reasonable doubt as a result of Apprendi and Blakely. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made determinations under the United States Sentencing Guidelines advisory, thereby allowing such findings to continue to be made solely by Federal judges under a preponderance of the evidence standard. Further, the States have responded in various ways to Apprendi and Blakely, such that a careful understanding of specific State law is needed to determine whether a particular sentencing factor, if not admitted during the criminal proceedings, would be required to be found beyond a reasonable doubt by a jury.

Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428-429 (BIA 2007) [footnote omitted].

   (4) Following Apprendi, Martinez-Zapata applies only to sentence enhancements that increase the maximum possible statutory penalty for the offense. Therefore, sentence enhancements are not equivalent to elements of the offense, for immigration purposes, if they do not increase the maximum statutory penalty for the conviction, but merely increase the actual sentence ordered for the conviction within a fixed statutory maximum, as is the case under the United States Sentencing Guidelines and similar state sentence frameworks.

   (5) Martinez-Zapata does not apply where a sentence enhancement does not increase the statutory maximum for the offense, but merely the statutory minimum. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.4 (BIA 2007) ("Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely increases the statutory minimum sentence but does not exceed the statutory maximum sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section 481.134(c) does not create a separate offense because its only effect is to raise the penalty when an enumerated offense is committed in a designated place); see also Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978).").

   (6) The federal constitutional guarantee of the right to a jury trial does not apply to misdemeanors carrying a maximum sentence of six months or less. Therefore, in such misdemeanor cases, there is no constitutional right to have a jury finding of the true of many sentence enhancements. This gives rise to an argument that Martinez-Zapata does not convert such sentence enhancement findings into elements of the offense for immigration purposes. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428 n.2 (BIA 2007) ("Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of 6 months or less, however, are not required to be tried before a jury. See Lewis v. United States, 518 U.S. 322 (1996).") The BIA, however, has expressly left this question open. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

   (7) The sentence enhancement in Martinez-Zapata converted a Class B misdemeanor, in violation of Texas Health & Safety Code 481.121(b)(1) to a Class A misdemeanor, in violation of Texas Health & Safety Code 481.134(f)(1). Martinez-Zapata, supra, at 425. This can fairly be said to affect the "conviction" directly, since the defendant under this statute is now "convicted" of a Class A misdemeanor, rather than a Class B misdemeanor. On the other hand, a sentence enhancement that merely alters the maximum possible sentence for a conviction cannot be said to affect the conviction in the same way. Counsel can argue that this difference should lead to a distinction, but the chances of a court adopting this distinction seem limited.

   (8) Martinez-Zapata expressly applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 (BIA 2007). Therefore, counsel for respondent can argue that a given sentence enhancement was imposed in violation of due process, or another fundamental federal constitutional right, such as the Apprendi right to jury trial, and therefore does not under the facts of this case constitute an element of the offense of conviction. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007).

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS
Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007) (any fact, including a fact contained in a sentence enhancement, that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt if not admitted by the defendant, is to be treated as an element of the underlying offense; a conviction involving the application of such an enhancement is a conviction for the enhanced offense), superseding Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA 1992), in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). http://www.usdoj.gov/eoir/vll/intdec/vol24/3594.pdf

RECORD OF CONVICTION - SENTENCE ENHANCEMENT - ELEMENTS - OPEN QUESTION WHETHER SENTENCE ENHANCEMENT EQUALS AN ELEMENT FOR PURPOSES OF DETERMINING THE NATURE OF THE CONVICTION UNDER IMMIGRATION LAW WHERE THE CONVICTING JURISDICTION REQUIRES IT BE PROVEN BEYOND A REASONABLE DOUBT TO A COURT RATHER THAN A JURY
Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

Sixth Circuit

CAL POST-CON - SEX OFFENDER REGISTRATION - SENTENCE ENHANCEMENTS - SEX OFFENDER REGISTRATION
In People v. Puentes, 2007 WL 927927 (6th Dist. Calif. Court of Appeals March 29, 2007), the court, in dictum, stated:

"For the guidance of the court and parties in the event the issue arises again, we observe that registered sex offender status, with the accompanying worldwide publication of that status over the internet, imposes a grave stigma and social disability upon the offender. Such publication has been held not to raise registration to the status of punishment for purposes of the ex post facto clause because the fact of the defendants conviction of a sex offense is already a matter of public record. (Smith v. Doe (2003) 538 U.S. 84, 98 ["the stigma of Alaskas Megans Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public"]; id. at p. 99 [citizens visit to web site to search for offenders is "analogous to a visit to an official archive of criminal records"]; In re Alva (2004) 33 Cal.4th 254, 276-277, quoting Smith v. Doe, supra, at p. 101 ["Whatever lasting and painful impact the public availability of registration information may have on an offenders practical ability to obtain employment and housing, these consequences flow not from the Acts registration and dissemination provisions, but from the fact of conviction, already a matter of public record "].) This rationale loses its force when the defendant has been convicted not of a sex offense, but of some other offense found only by a court, not a jury, to be sexually motivated. Here, an examination of the public record would tell defendants fellow citizens that two juries refused to convict him of a sex offense. So far as the verdict reflects, he may have done nothing more culpable or more indicative of a risk of future sex offenses than to fail to arrange for her apprehension by juvenile authorities. Publicly declaring him a sex offender therefore imposes a stigma and disability far beyond anything that would flow from the publics examination of the record in his case. It may therefore be forcefully argued that registration in such a case is an "increase[]" in the "penalty" such that the facts on which it rests must be found by a jury. (See Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Blakely v. Washington, supra, 542 U.S. at p. 301.)"

Ninth Circuit

SENTENCE " SENTENCE IMPOSED " RECIDIVIST SENTENCE ENHANCEMENT SENTENCE IS SENTENCE IMPOSED
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (California felony petty theft convictions under Penal Code 484(a) and 666 constituted aggravated felony theft offenses, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for illegal re-entry sentencing purposes); declining to follow United States v. Corona"Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); following United States v. Rodriquez, 553 U.S. 377, 382-386 (2008) (an increased, recidivist sentence is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one so the sentence imposed for the sentence enhancement does relate to the commission of the repeat offense and is clearly part of the sentence prescribed by law; therefore a recidivist sentence constitute a sentence imposed for determining whether a prior conviction qualifies as a predicate offense).

SENTENCE - RECIDIVIST ENHANCEMENTS
United States v. Carr, __ F.3d __, 2008 WL 200648 (9th Cir. Jan. 25, 2008) (Washington felony conviction for violation a protection order, in violation of RCW 26.50.110(5), was a felony for purposes of finding defendant a felon in possession of a firearm; although violation of a protection order is itself a gross misdemeanor, defendant was convicted under subsection (5), for repeat offenders, and to convict under (5), the prosecution must prove the prior beyond a reasonable doubt).

NOTE: The court here distinguished United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002), on the basis that 18 U.S.C. 921(a)(20) requires that the determination of whether the conviction is a felony or a misdemeanor be made according to state law, while in the aggravated felony and federal sentencing contexts, the categorical approach is used to determine whether the offense would be a felony under federal law.

NATURE OF OFFENSE - ELEMENTS OF OFFENSE - SENTENCE ENHANCEMENTS - RECIDIVIST ENHANCEMENTS
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (prior convictions are not elements of offense, and need not be pleaded or found beyond reasonable doubt by jury, to impose a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1): "The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301 (2004); United States v. Booker, 543 U.S. 220, 244 (2005); Cunningham v. California, 127 S.Ct. 856, 864, 868 (2007); and, most recently, James v. United States, 127 S.Ct. 1586, 1600 n. 8 (2007).").

SENTENCE - MAXIMUM POSSIBLE TERM - MAXIMUM TERM ENHANCED BY RECIDIVIST SENTENCE ENHANCEMENT DOES NOT COUNT FOR PURPOSES OF ACCA BECAUSE RECIDIVISM DOES NOT RELATE TO THE COMMISSION OF THE OFFENSE
United States v. Rodriquez, 464 F.3d 1072, 1079, 1082 (9th Cir. 2006) (Washington conviction for delivery of a controlled substance, in violation of Washington Revised Code 9A.20.021(1)(c), which carried a maximum term of five years for the substantive crime, but was enhanced to ten years as a "second or subsequent offense[ ]" under a recidivism provision, did not qualify as a "serious drug offense" under the pertinent definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. 924, et seq. ("an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law. " (quoting 18 U.S.C. 924(e)(2)(A)(ii)) (emphasis in original), because, following Corona-Sanchez, Rodriquez's prior controlled-substance violation could not be classified as a "serious drug offense," though he received an enhanced sentence of ten years under the recidivist statute, because "recidivism does not relate to the commission of the offense."), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), and Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. 2004).