The final sentence imposed by the criminal court determines the significance of the conviction for immigration purposes.  For example, where the original conviction (and sentence) has been vacated, and a new plea entered, but no new sentence had been imposed since the prior sentence had been completely satisfied, the new plea did not result in a conviction under the new 1996 statutory definition of conviction, since no “restraint on liberty” had been imposed after and as a result of the new plea.[65]  The BIA has long held it is the final sentence that counts for immigration purposes, rather than the initial sentence that has been set aside or altered.[66]  Federal courts agree.[67]

[65] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001).

[66] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation by Board of Pardons and Paroles).

[67] E.g., United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir. July 27, 2001) (completion of Colorado Regimented Inmate Training Program, resulting in order ‘reconsidering’ sentence to probation, effectively reduced sentence from imprisonment to probation, and therefore menacing conviction could not be regarded as prior “aggravated felony,” for sentencing enhancement purposes under 18 U.S.C. § 1326); LaFarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (state court designation of a wobbler offense as a misdemeanor binding on BIA for purpose of applying petty offense exception); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give consideration to state court reduction of California ‘wobbler’ offense from a felony to a misdemeanor offense; reductions of sentences by state courts are qualitatively different from state expungements, since in modifying a sentence, the state court is determining the nature of the conviction pursuant to state law); Mateo v. United States, 276 F.Supp.2d 186 (D. Mass. August 12, 2003) (a state court nunc pro tunc order terminating state probation to a time prior to commission of federal offenses, granted after federal sentencing, requires that petitioner’s 28 U.S.C. § 2255 petition be allowed and the petitioner’s sentence be recalculated).

Ninth Circuit

SENTENCE - GUIDELINES - WOBBLER - REDUCED SENTENCE IS USED FOR GUIDELINES CALCULATIONS
United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative "felony-misdemeanor" or "wobbler," the alternative sentence ultimately executed is the one to be used in guidelines calculations).