Safe Havens

(B)  Sentence Enhancement Does Not Determine Nature of Conviction.  A sentence enhancement — even one that is admitted by the defendant — does not constitute part of the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense for the purpose of determining whether a conviction constitutes a deportable offense.[87]

[87] Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002); see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for a recidivist does not define a separate crime).  See also United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant because he had suffered previous drunk driving convictions did not convert drunk driving offense to a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (firearms enhancement did not convert non-firearms offense into firearms offense); but see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001).