Under immigration law, a noncitizen convicted of a felony (i.e., an offense carrying a maximum sentence greater than one year in custody) is disqualified from the “Petty Offense Exception” to inadmissibility.[120]  Reduction of the level of the offense from a felony to a misdemeanor will reduce the maximum potential sentence to one year, thus enabling the immigrant to qualify for the Petty Offense Exception to inadmissibility.[121]

 

This exception is limited to excusing inadmissibility based on one conviction of an offense involving moral turpitude.[122]  Under the Petty Offense Exception, a noncitizen is automatically not inadmissible if:

 

(1)     s/he has committed only one crime involving moral turpitude, ever; and

 

(2)     s/he “was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed)”; and

 

(3)     the offense carries a maximum possible sentence of one year or less.[123]  

 

Thus, a person convicted of a misdemeanor first-offense crime of moral turpitude with a sentence of six months or less is not inadmissible under the moral turpitude ground because the maximum sentence for a misdemeanor conviction is one year.[124]  This exception has broad effects in a number of different immigration contexts. 

 

[120] See INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[121] This will fulfill the third requirement for the petty offense exception, that the maximum sentence must be one year or less.  LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[122] INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i).

[123] See INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[124] See California Penal Code § 17(a).

SENTENCING - BLAKELY AND THE FEDERAL SENTENCING GUIDELINES - MAXIMUM SENTENCE
United States v. Booker, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005) (Sixth Amendment as construed by Blakely v. Washington, 542 U.S. ___ (2004), applies to the Federal Sentencing Guidelines because they are mandatory; advisory provisions would not implicate the Sixth Amendment, because judges may exercise broad discretion in imposing a sentence within a statutory range).      The Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Slip opn., first part, p. 20.) Justice Breyer wrote the second part (the remedial portion) (joined by Rehnquist, O'Connor, Kennedy, and Ginsburg) which concluded that the statute which makes the sentencing guidelines mandatory (18 U.S.C. 3553(b)(1)) and the section that provides for de novo appellate review of sentences outside the Guidelines (3742(e)), violate the Sixth Amendment and must be severed from the rest of the Sentencing Reform Act of 1984. With this modification, the Guidelines are effectively advisory, requiring the court to consider Guidelines ranges (sec. 3553(a)(4)) but permitting it to tailor the sentence in light of other statutory concerns (sec. 3553(a)). The decisions are binding on all cases that are currently on direct review.

Fifth Circuit

IMMIGRATION OFFENSES - NONCITIZEN IN POSSESSION OF FIREARM - BOOKER SENTENCING REMAND
United States v. Villegas, __ F.3d __, 2005 WL 627963 (5th Cir. March 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four level enhancement to 18 U.S.C. 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents).

Ninth Circuit

POST CON RELIEF - SENTENCE - REMAND FOR RESENTENCE - BOOKER ILLEGAL REENTRY - SENTENCE - BOOKER REMAND
United States v. Hernandez-Hernandez, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (sentence following a guilty plea conviction for illegal reentry is affirmed and a limited remand pursuant to Ameline is granted where district court properly applied prior convictions with regards to sentence enhancement).
http://caselaw.lp.findlaw.com/data2/circs/9th/0230429p.pdf