One conviction of a crime involving moral turpitude, committed within five years of admission, with a maximum of one year in custody, will trigger removal.[139]  Normally, reduction of an alternative felony-misdemeanor to a misdemeanor will reduce the maximum term of imprisonment to one year.  Unfortunately, this will still be a sufficient potential sentence to trigger removal under these circumstances.

 

            If, however, a defendant pleads to attempt to commit a felony, in a jurisdiction in which an attempt is punished by one-half the maximum of the substantive offense, and the offense is later reduced to a misdemeanor, there is an argument that the maximum sentence for the reduced offense would be no more than six months. 

 

Where the felony originally carried a potential three-year sentence, a conviction of attempting to commit that offense carried a potential 18-month sentence.[140]  Where the felony is reduced to a one-year maximum misdemeanor, the maximum punishment for a conviction of attempt to commit it is reduced to a maximum six-month sentence.[141]  This new six-month maximum sentence for the crime of moral turpitude conviction is insufficient to trigger removal, since it is less than the one-year potential sentence required.[142] 

 

            Therefore, if counsel encounters a conviction of attempting to commit an alternative felony-misdemeanor, a successful reduction of the conviction to a misdemeanor would offer the noncitizen a strong argument that the single conviction is now insufficient to trigger removal.

 

            If a conviction has been vacated, counsel should consider negotiating a plea to an attempt to commit a “wobbler” wherever it is necessary to avoid a one-year maximum sentence in order to avoid the adverse immigration consequences of the plea.  Then, when the felony is later reduced to a misdemeanor, it is possible to argue that the maximum possible sentence for the offense of conviction is now only six months.  Deportation can be avoided by this means where the client is otherwise deportable for one conviction of a crime of moral turpitude, committed within five years of last admission, with a maximum potential sentence of one year.[143]

[139] INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

[140] California Penal Code § 664(a).

[141] California Penal Code § 664(b).

[142] INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

[143] Ibid.

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).