(B)  The Length of the Sentence Imposed.  The current rule has several aspects:

 

(1)  Custody Ordered by the Court.  What counts is the formal sentence to custody ordered by the court, not the term actually served.[233]  If the court orders a sentence of one year in custody to be served, but the defendant actually serves only eight months because of good behavior, s/he has received a “sentence imposed” of one year for immigration purposes, and would be deportable as an aggravated felon if the offense is on the list.  The “sentence imposed” definition under the Guidelines is not necessarily identical.[234]

(2) Actual Term Imposed.  The term of imprisonment refers to the actual term imposed, not the statutory minimum or maximum.[235]  However, a sentence with an indeterminate term is considered to be that of the maximum, even if a lesser term is served.[236]  Thus, an indeterminate term, with a maximum of one year or more, is considered a sentence imposed equal to the maximum that might be required to be served, even if the noncitizen was released prior to actually serving a year.[237]

 

            In some states, an indeterminate sentence may be considered as being reduced if a court awarded credit for time served in some form.  For example, North Carolina uses indeterminate sentencing, but the statute actually reads that the maximum sentence is reduced by credits earned.  Therefore, the maximum of a 10-12 month sentence is legally reduced, after the fact under the statute.  It is safest to ask the court in a post-trial order to declare that the maximum sentence was actually reduced, which will count in and of itself as a valid sentence reduction, but if that is not possible, the argument is still very strong that the statute reduces the maximum which could then fall below the sentence necessary to trigger adverse immigration consequences.[238]

(3) One Year Defined.  A sentence of “at least one year” means a sentence of 365 days or more, rather than requiring a “natural or lunar” year of 365 days plus some hours,[239] or a 366-day year containing Leap Year Day.  There is no “leap year defense.”[240]

 

(4) Probation Length Irrelevant.  The duration of probation does not count as a sentence to confinement for this purpose.[241]  Thus, if the client receives no court-ordered prison term and no custody time is ordered as a condition of three years probation, that counts as zero sentence imposed.  The government bears the burden of proving otherwise.[242]  Sometimes, under state law, a probationary sentence means the court has in fact ordered a state prison sentence to be served, but execution of that sentence is in effect suspended during the probationary period.  Under those circumstances, the probation itself does not constitute a sentence, but the suspended prison sentence does.

(5)  Suspended Sentence.  If sentence is imposed, and execution of sentence is suspended, the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes.[243]  For example, if the defendant is sentenced to three years in state prison, execution of that sentence is suspended, and the defendant is placed on probation on condition of serving six months in county jail, that counts as a “sentence imposed” of three years.  The definition of a “suspended sentence” is governed by federal law and includes all parts of a sentence of imprisonment that is ordered but not served, irrespective of the label attached under state law.[244]  For example, where Georgia courts had ordered service of a five-year sentence, but allowed all but eight months to be served on probation, the court of appeals held that the balance had been suspended under federal law, which therefore still counted as a sentence of more than one year.[245] 

(6) Misdemeanor Status Irrelevant to Sentence.  Obtaining treatment of the conviction as a misdemeanor under state law does not necessarily defeat consideration of the conviction as an aggravated felony if the conviction and sentence otherwise meet the aggravated felony definition.  In other words, conviction of a listed offense as a misdemeanor, with a sentence imposed of one year, generally constitutes an “aggravated felony” regardless of the fact that the offense is only a misdemeanor under state law.[246]  There are two exceptions to this rule, for (a) crime of violence aggravated felonies under 18 U.S.C. § 16(b), and (b) some drug trafficking aggravated felony convictions.  See § § 7.18, et seq., supra.

 

(7) Deferred Entry of Judgment.  Deferred Entry of Judgment, and similar programs, are ineffective to prevent consideration of a conviction as an aggravated felony, if one year of custody or more is ordered by a court after a guilty or no contest plea.[247]

(8) Concurrent Sentences.  Concurrent sentences are evaluated as the length of the longest sentence.[248] 

 

(9) Probation or Parole Violation Sentences.  The time served after a probation or parole violation is added to the custody time originally ordered to be served, to calculate the length of the aggregate “sentence imposed” for purposes of determining whether the offense is an aggravated felony.[249]  Thus, a defendant who initially received a sentence of less than one year, but then violated his probation or parole and was sentenced to an additional term of imprisonment that, when added to the original term, brings the total sentence imposed over one year, will be considered an aggravated felon.[250]  To enhance an illegal re-entry sentence, the additional custody imposed as a result of the probation violation must have been imposed prior to the re-entry for it to count toward the one-year sentence imposed.[251]

(10)  Youthful Offender Sentences.  A commitment under the former Federal Youth Corrections Act[252] or under a comparable state statute[253] is not considered a sentence to confinement.[254]

 

           (11)  Sentence Enhancement Sentences.  A sentence enhancement does not constitute part of the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense of conviction for the purpose of determining whether a conviction constitutes a deportable offense.[255]  The sentence imposed upon a sentencing enhancement or recidivist treatment therefore does not count towards the sentence for immigration purposes, at least in the Ninth Circuit.[256]

            The Ninth Circuit has established the rule that a sentence imposed pursuant to a recidivist sentence enhancement is not considered to constitute part of a sentence imposed, for determining whether a conviction qualifies as an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation.[257] Thus, where the base offense was petty theft under California law, with a maximum of six months in county jail, and the defendant received a two-year prison sentence under a statute that enhanced the sentence on account of a prior conviction, only the six-month sentence that could have been imposed for misdemeanor petty theft counted when determining whether a sentence of one year or more had been imposed on the defendant for purposes of deciding whether the current offense was an aggravated felony.

 

            This rule was extended to an Arizona case in which misdemeanor possession of marijuana was elevated to a felony allowing for a possible state prison sentence in excess of one year, since the defendant had suffered a prior conviction. The Ninth Circuit held that this second-offense conviction for possession of marijuana constituted only a misdemeanor with a one-year maximum, for purposes of determining whether it constituted a felony conviction that qualified as a “drug trafficking” offense under 18 U.S.C. § 924(c), since the underlying offense itself was only a misdemeanor and the felony status resulting from the recidivist sentence enhancement was ignored for this purpose.[258]

            In United States v. Arellano-Torres,[259] the court recognized that the holding of Corona-Sanchez applied equally to 21 U.S.C. § 844 (imposing greater sentence upon a subsequent simple possession conviction).

[233] United States v. Drummond, 240 F.3d 1333 (11th Cir. 2001); United States v. Maldonado-Ramirez, 216 F.3d 940, 944 (11th Cir. 2000); United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000).

[234] See United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (“sentence imposed” for purposes of U.S.S.G. § 2L1.2(b)(1) means the actual sentence imposed by the judge; parole [unlike probation] is not to be considered in determination of the “actual sentence imposed”).

[235] United States v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000); see also United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000) (per curiam); Alberto-Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000); United States v. Graham, 169 F.3d 787, 790-91 (3d Cir. 1999).

[236] Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002) (Pennsylvania misdemeanor conviction of making terroristic threats qualified as a “crime of violence” for immigration purposes, since the maximum of the 11 to 23 month sentence imposed was one year or more); Nguyen v. INS, 53 F.3d 310, 311 (10th Cir. 1995) (affirming agency determination that a sentence of 3-8 years constituted a sentence of at least five years for purposes of 8 U.S.C. § 1101(a)(43)); see also United States v. Galicia-Delgado, 130 F.3d 518 (2d Cir. 1997); United States v. Cordova-Beraud, 90 F.3d 215, 218-20 (7th Cir. 1996) (upholding U.S.S.G. § 2L1.2(b)(2) enhancement on the ground that, in light of § 4A1.2’s definition of “sentence of imprisonment,” an indeterminate sentence of 2-10 years constituted a sentence of “at least five years”); United States v. Quinonez-Terrazas, 86 F.3d 382, 383 (5th Cir. 1996) (upholding U.S.S.G. § 2L1.2(b)(2) enhancement on the ground that, in light of § 4A1.2’s definition of “sentence of imprisonment” and the “common law definition” of an indeterminate sentence, a sentence of 4-10 years constituted a sentence of at least five years); United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996) (treating suspended imposition of sentence under Texas law as a sentence imposed for purposes of aggravated felony enhancement in illegal re-entry case, since under Texas procedure a prison sentence of one year or more was in fact ordered as part of the procedure); United States v. Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995) (accepting upper limit of indeterminate sentence as the measure of the sentence imposed for purposes of aggravated felony sentence enhancement in an illegal re-entry case); Nguyen v. INS, 53 F.3d 310 (10th Cir. 1995) (taking the maximum sentence under an indeterminate sentence as the measure of sentence imposed in assessing whether a conviction constitutes a crime of violence aggravated felony under immigration law).  See Brett v. INS, 386 F.2d 439 (2d Cir. 1967) (three-year indeterminate term and actual service of more than one year considered sentence imposed of one year or more); Dentico v. Esperdy, 280 F.2d 71 (2d Cir. 1960); Matter of D, 20 I. & N. Dec. 827 (BIA 1994) (Massachusetts indeterminate sentence considered equal to a sentence for the maximum term imposed); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (indeterminate term in state reformatory, with a statutory maximum of five years, and more than one year actually served, considered sentence imposed of one year or more); Matter of Chen, 10 I. & N. Dec. 671 (BIA 1964) (indeterminate sentence with maximum term fixed by statute); Matter of Ohnhauser, 10 I. & N. Dec. 501 (BIA 1964) (California indeterminate sentence of six months to 14 years); Matter of S, 3 I. & N. Dec. 460 (BIA 1948) (15-month sentence, on three counts, where court failed to link the sentence with any particular count, considered a sentence of one year or more).

[237] United States v. Frias, 338 F.3d 206 (3d Cir. July 30, 2003) (“sentence imposed” means the upper limit of an indeterminate sentence for purposes of U.S.S.G. § 2L1.2 sentence enhancement in illegal re-entry cases); Burr v. Edgar, 292 F.2d 593 (9th Cir. 1961) (allowable deductions for good behavior do not alter the fact that sentence imposed was for one year); Petsche v. Clingan, 273 F.2d 688 (10th Cir. 1960); Kiobge v. Day, 42 F.2d 716 (S.D.N.Y. 1929); Matter of S, 8 I. & N. Dec. 344 (BIA 1959) (sentence of one year, with provision for parole after six months, considered sentence of one year).  Contra, Holzapfel v. Wyrsch, 157 F.Supp. 43 (D.N.J. 1957), aff’d on other grounds, 259 F.2d 890 (3d Cir. 1958) (indeterminate sentence to a maximum of five years did not constitute a sentence of one year or more under pre-1996 law, since parole could be granted immediately).

[238] Thanks to Jennifer Foster for this analysis.

[239] Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001).

[240] Lagandaon v. Ashcroft, 383 F.3d 983, n.10 (9th Cir. Sept. 9, 2004) (“Of course, in leap years, one additional day would be added.  See 2 BLACKSTONE, supra, at 140 (“The increasing day in the leap-year, together with the preceding day, shall be accounted for one day only.”)).

[241] See United States v. Martinez-Villalva, 232 F.3d 1329, 1333 (10th Cir. 2000) (direct imposition of probationary sentence does not render offense an “aggravated felony”); United States v. Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir. 2000); United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999) (same).

[242] United States v. Herrera-Solorzano, 114 F.3d 48 (5th Cir. 1997) (reversing aggravated felony determination for lack of sufficient proof where state court judgment inconsistently sentenced defendant to confinement by placing him on probation).

[243] See United States v. Echavarria-Escobar, 270 F.3d 1265 (9th Cir. 2001) (citing United States v. Christopher, 239 F.3d 1191, 1194 (11th Cir. 2001) (the defendant’s theft offense constituted an “aggravated felony” because “[t]he state court sentenced [defendant] to 12 months incarceration on his theft offense.  Since the sentence imposed is the controlling factor, [defendant’s] theft offense qualifies as an ‘aggravated felony.’  The fact that the state court suspended his sentence is irrelevant.”); Sousa v. INS, 226 F.3d 28, 33 n.4 (1st Cir. 2000) (“The fact that [the defendant’s] sentence was initially suspended does not matter” because he was sentenced by a court of law for a “crime of violence” to more than one year.  Thus, the defendant’s crime constituted an aggravated felony for sentencing purposes); United States v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (“[I]t is immaterial that [the defendant’s] sentence was suspended” in determining, for purposes of sentencing a defendant for illegal re-entry, whether a prior offense has a term of imprisonment of at least one year), cert. denied, 533 U.S. 904, 121 S.Ct. 2246 (2001); United States v. Marquez-Gallegos, 217 F.3d 1267, 1270 (10th Cir.) (“[T]he fact that [the defendant’s] three-year sentence was suspended is irrelevant” in determining, for purposes of sentencing a defendant for illegal re-entry, whether a prior offense has a term of imprisonment of at least one year), cert. denied, 531 U.S. 905, 121 S.Ct. 246 (2000); Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000) (“That [defendant’s] four-year sentence was suspended is of no significance, for IIRAIRA makes plain that ‘[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.’ “ (citation omitted)), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001); United States  v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir. 1999) (“A conviction is an aggravated felony within the meaning of § 2L1.2 if the defendant receives a sentence of at least one year, even if the sentence is suspended.”); United States v. Graham, 169 F.3d 787, 790-91 (3d Cir. 1999) (because the former statute defined aggravated felony as “a theft offense . . . for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years” and because Congress, when amending the statute, did not intend to change the sentence imposition requirement, but, instead, simply lowered the penalty required to make a theft violation an aggravated felony from five years to one year, the court should look at the sentence imposed rather than the sentence authorized (alteration in original)); United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999) (relying on INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B) in holding that when a court orders a period of incarceration and then suspends it, the conviction is an aggravated felony).

[244] United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996) (refusing to honor state law treatment of probationary sentence as “assessed,” rather than “imposed,” finding that custodial sentence had in fact been imposed, but then suspended by order of probation; thus, establishing custodial sentence for aggravated felony purposes); compare United States v. Herrera-Solorzano, 114 F.3d 48 (5th Cir. May 20, 1997) (“Unlike the judgment in Vasquez-Balandran, however, the judgment in the case at bar contains a reference to adult probation next to the term of confinement, which suggests that the state court may have been directly sentencing Altamirana to ten years of adult probation. That distinction carries significance because if Altamirana was placed on probation without first being sentenced to prison, his prior conviction does not constitute an aggravated felony.”).  The court in Herrera-Solorzano quoted the court in Vasquez-Balandran, supra, at 650, as stating: “Texas did (and still does) have a provision that allowed a defendant to be placed on probation (now ‘community supervision’) without first assessing a term of imprisonment.” Id., citing Tex.Code Crim.P. art. 42.12 § 5(a)).  See also United States v. Landeros-Arreola, 260 F.3d 407, 413-414 (5th Cir. July 27, 2001)(“Conversely in Landeros’s case, the court imposed a four year term of imprisonment but, thereafter, intervened and reduced the sentence imposed from one of imprisonment to one of probation. As a consequence, nothing remained of the original term of imprisonment for the court to suspend.”).

[245] United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

[246] Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002) (a conviction for a state misdemeanor may constitute an “aggravated felony” for immigration purposes if a term of imprisonment of at least one year is imposed); United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (state misdemeanor theft conviction, with one year suspended sentence, considered “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for federal sentencing purposes).

[247] Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc) (INS follows will of Congress on this point, regardless of what a state legislature may say).

[248] Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972).

[249] United States v. Compian-Torres, 320 F.3d 514 (5th Cir. January 29, 2003); United States v. Hidalgo-Macias, 300 F.3d 281 (2d Cir. 2002) (attempted burglary conviction, for which initial custodial sentence of six months of incarceration plus five years of probation was imposed, constituted “aggravated felony” warranting enhancement of sentence for illegal re-entry, where defendant violated probation, resulting in additional one-year sentence); United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir. 2001) (finding aggravated felony for sentencing purposes where initial probationary sentence was revoked and two-year custody term imposed); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994); see also Matter of CP, 8 I. & N. Dec. 504 (BIA 1959); cf. United States v. Moreno-Cisneros, 319 F.3d 456 (9th Cir. Jan. 31, 2003) (increase in guideline level for prior conviction where sentence imposed was more than 13 months was proper, since in computing the length of the sentence imposed on the prior conviction, a period of incarceration imposed as a result of a probation revocation is included); United States v. Leiva-Deras, 359 F.3d 183 (2d Cir. Feb. 17, 2004) (sentence following probation violation is included in determining sentence imposed for drug offense).  See Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972); United States ex rel. Fells v. Garfinkel, 158 F.Supp. 524 (W.D. Pa. 1957); Matter of M, 6 I. & N. Dec. 346 (BIA 1954).

[250] Matter of CP, 8 I. & N. Dec. 504 (BIA 1959).

[251] United States v. Carrillo-Lopez, 313 F.3d 1185 (9th Cir. Dec. 20, 2002) (custody term imposed as a result of a probation violation is aggregated with original custody term to determine whether a sentence of one year or more has been imposed, so long as it is imposed prior to removal and re-entry, for purposes of enhancing sentence for illegal re-entry under United States Sentencing Guideline § 2L1.2(b)(1)(A), and INS’s use of procedure in 8 U.S.C. § 1231(a)(5) to reinstate 1996 removal order does not “reset” the relevant time period for evaluating the 1995 conviction).

[252]  Former 18 U.S.C. § § 5005-5026 were repealed by Pub. L. No. 98-473, effective October 12, 1984.  Disposition of criminal charges under the former First Offender Act, former 21 U.S.C. § 844(b), and its state counterparts, also avoids subjecting noncitizen to immigration consequences.  Congress adopted a new Federal First Offender Act at the same time it repealed the former 21 U.S.C. § 844(b).  See Pub. L. No. 98-473; 18 U.S.C. § 3607.

[253] See Matter of N, 8 I. & N. Dec. 660 (BIA 1960), overruling Matter of CR, 4 I. & N. Dec. 136 (BIA 1950); Matter of Rico, 16 I. & N. Dec. 181 (BIA 1977).  But see Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967).

[254] Matter of V, 8 I. & N. Dec. 360 (BIA 1959); Matter of Nagy, 12 I. & N. Dec. 623 (BIA 1968).

[255] 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 recidivism 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 due to 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 a firearms offense); but see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001).

[256] United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. February 10, 2003) (Arizona conviction of second-offense possession of marijuana, in violation of Ariz. Rev. Stat. § § 13-901.01(A), (E), was not an aggravated felony as a drug trafficking conviction pursuant to INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), under U.S.S.G. § 2L1.2(b)(1)(C), for purposes of an eight-level sentence enhancement for illegal re-entry, since it was not punishable by more than one year’s imprisonment under applicable state law or under federal law since the greater sentence available on account of the prior was not considered to be available for the offense, but rather for the sentence enhancement), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001) (en banc); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona Revised Statute 13-1805(I), a class 4 felony punishing anyone “who commits shoplifting and has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, [etc.],” may not be an aggravated felony offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), in light of United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), since the offense is a felony only on the basis of a prior conviction-based sentence).  But see United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same).

[257] United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc).

[258] United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. § § 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be “for” the “offense,” but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc)).

[259] United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir. 2002).

BIA

SENTENCE - DEFINITION - FEES ARE PUNISHMENT
Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of "punishment" or "penalty" for purposes of establishing that a noncitizen has suffered a "conviction" within the meaning of INA 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling "punishment."

SENTENCE - CONSECUTIVE SENTENCES
Oregon v. ICE, __ U.S. __, 129 S.Ct. 711 (Jan. 14, 2009) (Apprendi and Blakely, requiring jury to find sentencing factors that increase the maximum possible sentence do not apply to decisions whether to impose consecutive or concurrent sentences; the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences).

First Circuit

CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.

Fifth Circuit

AGGRAVATED FELONY " SENTENCE " PROBATED SUSPENDED SENTENCES
United States v. Rios-Cortes, 649 F.3d 332 (5th Cir. Aug. 5, 2011) (theft offense is aggravated felony where the state court imposed a probated sentence of at least one year, imposing sentence then suspending execution during the period of probation); United States v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 2000); but see United States v. Landeros"Arreola, 260 F.3d 407, 410 (5th Cir. 2001) (defendants conviction no longer qualified as an aggravated felony because his sentence had been reduced to probation, rather than suspended for probation, since Colorado courts must sentence a defendant to either imprisonment or probation and may not probate a specific suspended sentence).

Sixth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCE - SENTENCE IMPOSED IS THE SENTENCE ACTUALLY SERVED, OR THE MINIMUM SENTENCE GIVEN, WHICHEVER IS GREATER, RATHER THAN THE MAXIMUM PERIOD UNDER AN INDETERMINATE SENTENCE
Shaya v. Holder, 586 F.3d 401 (6th Cir. Nov. 9, 2009) ("for the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually . . . served or the minimum sentence given, whichever is greater, as this better incorporates the judge's discretion and determinations than the statutory maximum term."; "Because the maximum term of a Michigan sentence will always be the maximum statutory term, measuring a Michigan sentence by its maximum term would thwart Congress's intent to measure some aggravated felonies by the statutory maximum and others, like crimes of violence, by the sentence actually imposed.").

NOTE: The reasoning of this decision was based upon the particularities of Michigan indeterminate sentencing, and may or may not be applicable to other states, even within the Sixth Circuit.

Seventh Circuit

SENTENCE - DATE OF SENTENCE - SENTENCE DATE IS DATE OF ORAL PRONOUNCEMENT, RATHER THAN ENTRY OF JUDGMENT
United States v Evans, 92 F. 3d 540, 544 (7th Cir. 1996) (the term "sentencing" refers "to the pronouncing of sentence by the judge in open court, rather than to the subsequent recording of the sentence on a docket sheet" under statute requiring application of U.S. Sentencing Guidelines in effect "on the date the defendant is sentenced."), citing 18 U.S.C. 3553(a)(4)(A); accord, United States v Navarro-Espinosa, 30 F3d 1169, 1170 (9th Cir. 1994) ("imposition of sentence" is "a term of art that generally refers to the time at which a sentence is orally pronounced.").

Eighth Circuit

SENTENCE - SUSPENDED SENTENCE
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) ("For purposes of U.S.S.G. 2L1.2(b), a "sentence imposed" does not include any part of a sentence that has been suspended. United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir.2003) (interpreting U.S.S.G. 2L1.2 cmt. 1(A)(iv) (2001), having materially the same text as current 4A1.2(b)(2), which is incorporated by reference into current 2L1.2, see 2L1.2 cmt. 1(B)(vii)). It does include both a sentence originally imposed, but not suspended, and any additional sentence of incarceration ordered as a result of a probation violation. Id.").

Ninth Circuit

SENTENCE " PSYCHIATRIC PRE-TRIAL CIVIL CONFINEMENT PENDING COMPETENCE TO STAND TRIAL DETERMINATION
Corpuz v. Holder, 697 F.3d 807 (9th Cir. Aug. 31, 2012) (BIA improperly considered as the term of imprisonment the entire period noncitizen spent in psychiatric pre-trial civil confinement pending a determination of his competence to stand trial, to find noncitizen barred from relief under former INA 212(c)).

CONVICTION " LEGALLY COGNIZABLE SENTENCE OR FINAL JUDGMENT REQUIRED TO CONSTITUTE CONVICTION FOR DRUG SENTENCE PURPOSES
United States v. Suarez, 682 F.3d 1214 (9th Cir. Jun. 22, 2012) (where a plea never ripens into either a final judgment or a legally cognizable sentence, there is no final prior conviction for purposes of 21 U.S.C. 841(b)(1)(A), which increases punishment for recidivism; deferred action under California Penal Code 1000.1, et seq., is not a "final" conviction for this purpose).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

CONVICTION - PUNISHMENT - CRIMINAL FINE THAT HAS BEEN STAYED DOES NOT CONSTITUTE SUFFICIENT PUNISHMENT TO CREATE A CONVICTION FOR IMMIGRATION PURPOSES
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (the statutory definition of "conviction," INA 101(a)(48), 8 U.S.C. 1101(a)(48), does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction because in the first part of its statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "Congress intentionally omitted the exemplars [listed in Matter of Ozkok], which included several minor sanctions such as "revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service." [Footnote omitted.] The minute order here required less from petitioner Retuta than any of the exemplars in the Ozkok opinion that Congress chose not to adopt. In fact, the minute order requires nothing of Retuta. He suffered no loss of wealth, nor loss of liberty." In addition, in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(48)(B) Congress specifically allowed suspended incarceration to qualify as sufficient punishment to create a conviction, but did not do so for a suspended fine.).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

SENTENCE - PROBATION VIOLATION SENTENCE IS ADDED TO ORIGINAL SENTENCE FOR GUIDELINES PURPOSES
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (to determine whether a sentence of 13 months was imposed, in assessing an illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(I) for a drug trafficking conviction, the court includes the original sentence plus any additional sentence imposed on account of a probation violation), citing United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003).

SENTENCE - CALIFORNIA PROBATION VIOLATION SENTENCE OF 365 DAYS INCLUDES PRIOR CREDIT FOR TIME SERVED UNLESS RECORD OF CONVICTION AFFIRMATIVELY SHOWS DEFENDANT CONSENTED TO SERVING A TOTAL SENTENCE IN LOCAL CUSTODY IN EXCESS OF 365 DAYS
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (to determine whether a sentence of 13 months was imposed, in assessing an illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(I) for a drug trafficking conviction, the record of conviction must affirmatively show the defendant consented to receiving a probation violation sentence of 365 days in excess of the original sentence served, or else the 365-day probation violation sentence will be construed as including the original sentence, since California Penal Code 19.2 prohibits a court from imposing a local custody sentence in excess of 365 days), citing People v. Johnson, 82 Cal.App.3d 183, 147 Cal.Rptr. 55, 58 (Ct.App.1978) (providing that a California trial court can impose up to 365 days of jail time after a probation violation, if the defendant consents, even if the jail time imposed as an original condition of probation was 365 days).

SENTENCE - PROBATION VIOLATION
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) ("For purposes of U.S.S.G. 2L1.2(b), a "sentence imposed" does not include any part of a sentence that has been suspended. United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir.2003) (interpreting U.S.S.G. 2L1.2 cmt. 1(A)(iv) (2001), having materially the same text as current 4A1.2(b)(2), which is incorporated by reference into current 2L1.2, see 2L1.2 cmt. 1(B)(vii)). It does include both a sentence originally imposed, but not suspended, and any additional sentence of incarceration ordered as a result of a probation violation. Id.").

SENTENCE - "SENTENCE IMPOSED"
United States v. Gonzales, __ F.3d __, 2007 WL 3244006 (9th Cir. Nov. 5, 2007) (en banc) (The language "term of imprisonment" in U.S.S.G. 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment.), overruling United States v. Williams, 291 F.3d1180, 1195 (9th Cir. 2002); United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005).

Lower Courts of Ninth Circuit

SENTENCE - NONPENAL INSTITUTIONS - CREDITS - NEW CHARGES WHILE ON INSANITY COMMITMENT
People v. Callahan, 144 Cal.App.4th 678 (Nov. 6, 2006) (criminal defendants are not entitled to conduct credit for time spend in a state hospital). See also People v. Bruner (1995) 9 Cal.4th 1178, 1191 (prisoner not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period); People v. Buchhalter (2001) 26 Cal.4th 20, 30, n.6 (no conduct credit for time spent in nonpenal institutions.)

Tenth Circuit

SENTENCE " SENTENCE IMPOSED
United States. v. Huyoa-Jimenez, 623 F.3d 1320 (10th Cir. Oct. 21, 2010) (when a defendant has received an entirely suspended sentence for a prior felony drug trafficking offense, no sentence is imposed, and the district court should apply the eight-level enhancement to the illegal reentry sentence for aggravated felonies under 2L1.2(b)(1)(C), instead of the twelve-level enhancement for prior felony drug trafficking convictions for which the sentence imposed was 13 months or less under U.S.S.G. 2L1.2(b)(1)(B)); accord, United States v. Rodriguez-Parra, 581 F.3d 227, 229-30 (5th Cir. 2009) (concluding it was error but not plain error to apply a twelve-level enhancement to a defendant whose entire sentence was suspended); United States v. Alvarez-Hernandez, 478 F.3d 1060, 1066-67 (9th Cir. 2007) (concluding a defendant whose entire sentence for a prior drug trafficking conviction was suspended should receive the eight-level enhancement).

SENTENCE " DEFINITION OF SENTENCE IMPOSED
United States v. Rendon-Alamo, 621 F.3d 1307 (10th Cir. Oct. 19, 2010) (affirming illegal reentry sentence, where in 2003, the Sentencing Commission added a commentary to U.S.S.G. 2L1.2 defining the term "sentence imposed" to "include[] any term of imprisonment given upon revocation of probation, parole, or supervised release," and to "include" means "[t]o contain as a member of an aggregate").

Eleventh Circuit

SENTENCE IMPOSED " CUMULATIVE ORIGINAL SENTENCE PLUS PROBATION VIOLATION SENTENCE
Dixon v. U.S. Atty. Gen., 768 F.3d 1339 (11th Cir. Oct. 1, 2014) (Florida conviction for aggravated fleeing, Fla. Stat. 316.1935(4)(a), is categorically a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the original sentence to incarceration, plus the additional sentence to incarceration imposed as a result of a probation violation, totalled one year or more).

SENTENCE - PROBATION VIOLATION
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) (rejecting argument that when a defendant violates his probation or community control, he is not then incarcerated for the underlying conviction, but only for the violation, so new sentence of one year or more triggers aggravated felony ground of deportation).

SENTENCE - SENTENCE IMPOSED
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).

Other

CRIMINAL DEFENSE OF IMMIGRANTS " SENTENCE - SUSPENDED SENTENCES
Al-Amyn Sumar, PRACTICE ADVISORY, Understanding and Mitigating the Effect of Suspended Sentences, discusses the immigration consequences of suspended sentences, provides background about the governing statutory framework and case law, and suggests strategies for softening their potential impact. http://xa.yimg.com/kq/groups/6503708/904649546/name/Practice%20Advisory_Suspended%20Sentences_%206-04.pdf