All the techniques described under § § 7.24-7.26, supra, may be used in an effort to avoid a one-year sentence imposed, which will prevent the conviction from being considered an aggravated felony conviction under this theory.

The former law provided that a “crime of violence” required a sentence imposed of five years in order to qualify as an aggravated felony, but IIRAIRA reduced the sentence imposed requirement to one year.[369] This reduced sentence requirement may be applied retroactively to convictions predating IIRAIRA’s effective date without violating the legal rights of the accused.[370]

[369] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[370] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2001)(IIRAIRA statutory amendment that reduced requisite sentence imposed requirement for aggravated felon status, and reducing term that would render noncitizen ineligible for INA § 212(c) relief from deportation, from five years sentence imposed to one year, did not violate defendant’s due process rights and is not impermissibly retroactive as applied to defendant).

First Circuit

AGGRAVATED FELONY - FELONY - SENTENCE IMPOSED OF SIX MONTHS DETERMINES THE LEVEL OF THE OFFENSE WAS A MISDEMEANOR FOR FEDERAL CAREER CRIMINAL CRIME OF VIOLENCE SENTENCE PURPOSES, BECAUSE THAT SENTENCE WOULD NOT HAVE BEEN LAWFUL IF THE OFFENSE HAD BEEN A FELONY
United States v. Simo-Lopez, ___ F.3d ___, 2006 WL 3759302 (1st Cir. Dec. 22, 2006) (Puerto Rico conviction for aggravated battery, in violation of P.R. Laws Ann. tit. 33, 4032(e), was considered a misdemeanor under Puerto Rico law because the court imposed a sentence of six months confinement, which could only have lawfully been imposed on account of a misdemeanor conviction, and the conviction therefore did not qualify as a "crime of violence," under USSG 2L1.2 which requires a conviction to be a felony under the law of the jurisdiction of conviction before it can be considered a felony for federal illegal reentry sentence purposes of imposing a 16-level increase in the offense level). http://laws.lp.findlaw.com/1st/052656.html