For immigration purposes, “sentence imposed” includes a period of confinement ordered by a judge for an offense, “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”[1]  This changed the former rule, which was that if a court suspended imposition of sentence and ordered jail time as a condition of probation, the immigration authorities would consider that to equal zero sentence imposed for immigration purposes. 

 

The rule has several aspects:

 

(1)  What counts is the formal sentence to custody ordered by the court.  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 still 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.

 

(2)  The duration of probation does not count as a sentence to confinement for this purpose.[2]  Thus, if the client receives imposition of sentence suspended and no custody time is ordered as a condition of three years probation, that counts as zero sentence imposed.

 

(3)  If sentence is imposed, and execution of sentence is suspended, the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes.  For example, if the defendant is sentenced to three years in state prison, and 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.[3]

 

(4)  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 meet the definition.  In other words, conviction of an offense on the aggravated felony list, as a misdemeanor, with a sentence imposed of one year, constitutes an “aggravated felony” regardless of the fact that the offense is only a misdemeanor under state and/or federal law.[4]

 

(5)  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.[5]

 

(6)  Concurrent sentences are evaluated as the length of the longest sentence.[6]  Indeterminate sentences are counted as the maximum possible sentence.

 

Youthful Offender Sentences.  A formal commitment of a defendant to the California Youth Authority (CYA), as opposed to a commitment to the California Department of Corrections with a recommendation that the defendant be housed in CYA, does not constitute a sentence to confinement for immigration purposes.[7]  If counsel can vacate a state prison sentence, and obtain a CYA commitment instead, the new sentence will not be considered a sentence to confinement.

 

[1] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[2] This assumes no sentence to confinement is otherwise or automatically imposed when probation is granted.  In some states, such as Texas, a prison sentence is implicitly deemed imposed when probation is granted, so that implicit sentence to confinement would be considered a sentence imposed for immigration purposes.

[3] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).

[4] 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).

[5] 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).

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

[7] Matter of N, 8 I. & N. Dec. 660 (BIA 1960); cf. Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (term in N.Y. State Reformatory did constitute a sentence). 

POST CON - AFTER CONVICTION VACATED - IF THERE IS NO NEW SENTENCE, THERE IS NO CONVICTION FOR IMMIGRATION PURPOSES
If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956) ("Final judgment in a criminal case means sentence.") (quoting Berman v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937)); United States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992)(citing United States v. Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th Cir. 1975) ("Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.")).

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."

TEXAS - DEFERRED ADJUDICATION
A theft offense is only an aggravated felony (and therefore, a disqualification for cancellation), if the sentence imposed was at least one year.  Under Texas law, where deferred adjudication is granted, no sentence is imposed.  Therefore, crimes of violence, theft offenses, and other convictions for which a sentence imposed of one year is transforms the conviction into an aggravated felony, do not become aggravated felonies if the defendant received and successfully completed deferred adjudication without a violation since no sentence of one year or more has been imposed. But see, Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (Texas deferred adjudication is a conviction for immigration purposes).

SENTENCE -- SENTENCE TO TREATMENT FACILITY
Sentence to a state mental hospital following conviction of a crime is a "sentence" for immigration purposes. Matter of V, 7 I. & N. Dec. 242 (BIA 1956). Sentence to a drug treatment facilities is considered a sentence for purposes of the satisfying the definition of "convicted." Dunn-Martin v. District Director, 426 F.2d 894 (9th Cir. 1970); Matter of Robinson, 15 I. & N. Dec. 197 (BIA 1975); United States ex rel. Abbenante v. Butterfield, 112 F. Supp. 324, 326 (E.D. Mich. 1953), aff'd per curiam, 212 F.2d 794 (6th Cir. 1954) (drug addict committed to public health service hospital was "sentenced to confinement" within the meaning of 8 U.S.C.A. 1251(a)(4)). But see, Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (a sentence for primarily rehabilitative confinement is not necessarily a "sentence to confinement" under 1251(a)(4)), Matter of M, 8 I & N 256 (BIA 1959).

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.

Third Circuit

SENTENCE - CONFINEMENT - HOME DETENTION - ANKLE BRACELET
Ilchuk v. Attorney General of U.S., 434 F.3d 618 (3d Cir. Jan. 17, 2006) (house arrest with electronic monitoring constitutes "imprisonment" for purposes of deportation under INA 237(a)(2)(A), 8 U.S.C. 1227(a)(2)(A)); Rodriguez v. Lamer, 60 F.3d 745, 749 (11th Cir. 1995) (home confinement may constitute custody); see also Salim v. Reno, 2000 WL 33115910, at *4-*5 (E.D.Pa. Jan.16, 2001) (finding that a convict whose sentence was suspended in favor of mental treatment in a state hospital and later in his home "was sentenced and imprisoned within the meaning of the INA").

Fourth Circuit

SENTENCE " FELONY " MAXIMUM SENTENCE
United States v. Bercian-Flores, ___ F.3d ___, 2015 WL 2239325 (4th Cir. May 14, 2015) (rejecting an argument that the top sentence of six months in pre-Booker Guidelines range controls over statutory maximum sentence in determining maximum sentence of prior felony for illegal re-entry sentencing purposes).

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 " CREDIT FOR TIME SERVED " DELAY IN CHARGING DENIED DEFENDANT CHANCE TO GET CREDIT FOR TIME SERVED IN PART IN IMMIGRATION DETENTION
United States v. Estrada-Mederos, ___ F.3d ___, ___, 2015 WL 1926371 (7th Cir. Apr. 29, 2015) (The sentencing judge could view the time spent under ICEs custody as the basis for granting a convicted migrant a downward departure from the sentencing range for illegal reentry.).

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 " CREDIT FOR TIME SERVED " TIME SPENT IN IMMIGRATION DETENTION PENDING CRIMINAL TRIAL
Zavala v. Ives, ___ F.3d ___, 2015 WL 2343637 (9th Cir. May 18, 2015) (defendants are entitled to sentencing credit for time in ICE detention pending criminal prosecution).

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 - 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.

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).

SENTENCE - PAROLE - GUIDELINES DEFINITION
United States v. Benitez-Perez367 F.3d 1200 (9th Cir. May 20, 2004) ("sentence imposed" for purposes of 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").
http://caselaw.lp.findlaw.com/data2/circs/9th/0310419p.pdf

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).

Other

SENTENCE " IMPRISONMENT INCLUDES WORK RELEASE
The common meaning of imprisonment is incarceration in a prison, jail, or other penal institution, including work furlough from a custody sentence. See, e.g., United States v. Miller, 547 F.3d 1207, 1213 (9th Cir. 2008) (incarceration in county jail work release program constituted part of defendants term of imprisonment where defendant remained under the authority of the Bureau of Prisons).

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

POST CON RELIEF - SENTENCE - PROBATION VIOLATION
Where a defendant has previously received a sentence of 364 days in custody for an offense that would be an aggravated felony with a one-year sentence imposed, any additional custodial sentence imposed as a result of a probation violation would be added to the original sentence and would transform the conviction into an aggravated felony. Defense counsel at the probation violation plea bargaining and sentencing stages should: (1)  Ask the court to vacate the original probation condition imposing the custodial sentence of 364 days;

(2)  Enter a waiver of credit for time previously served for the 364 days already served; and

(3)  As the court to impose a new probation condition of whatever time in custody will meet the prosecution and courts sense of an appropriate additional custodial sentence for the probation violation. (A new sentence of no more than 180 days in custody would enable the conviction to qualify under the sentence-imposed requirement of the Petty Offense Exception to inadmissibility for a crime of moral turpitude conviction if that is a relevant consideration for the defendant.)

Since the court explicitly vacates (even if not as legally invalid) the original 365 sentence order, that is effectively eliminated for immigration purposes.  Matter of Cota, 23 I. & N. Dec. 849 (BIA 2005); Matter of Song, 20 I. & N. Dec. 136 (BIA 1989); LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).