Criminal Defense of Immigrants


§ 5.7 (C)

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(C)  Avoiding a finding of any sentence enhancements applicable to the offense of conviction.  These can be either recidivist enhancements, dependent on prior convictions meeting certain descriptions, or conduct-based enhancements, dependent on a true finding that the defendant committed certain conduct in the commission of the offense.  Sentence enhancements are generally not considered to be part of the offense of conviction for immigration purposes, although there is some confusion on this point depending on whether the enhancement raises the statutory maximum sentence for the offense.  It can be difficult on occasion to determine whether a particular provision is a sentence enhancement or an element of the offense of conviction.  See § 5.29 and Chapter 10, infra.