Criminal Defense of Immigrants
§ 5.41 2. Criminal Consequences
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The client may hesitate to attempt to set aside a plea if the risk of re-prosecution and reconviction carries the possibility of receiving more imprisonment the second time around. It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but it is a significant factor in many clients’ minds.
In the most common situation, a defendant challenges the validity of the guilty plea and is successful. The client thereby sets aside both the conviction as well as any consideration s/he received as a result of the plea, and all original charges are reinstated. The client may be convicted on retrial of greater charges and may potentially be sentenced to a greater term of imprisonment.
Generally, the client must be given full credit against any new sentence for the time s/he has actually already served in the matter.
It is true that constitutional rights against vindictive prosecution may offer some protection. See § 11.77(B), infra. It is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the original sentence was imposed as the basis for a claim that a harsher sentence is appropriate the second time around, as an alternative rationale for such a sentence so it is not seen as an extra punishment inflicted on account of the defendant’s exercise of constitutional right to reopen a defective conviction.
As a practical matter, because of the law requiring credit for time served, and because the case may be an old one, if the client has developed a good record in custody and otherwise since the original conviction, it is often extremely unlikely that the court would in fact resentence the client to a greater punishment after reconviction, unless the court were required to do so by mandatory sentencing laws. Counsel should, however, carefully investigate and discuss the possibility with the client so s/he is fully aware of this risk when deciding whether to go forward with an attack on the validity of the conviction.
CAVEAT: In this age of mandatory sentences, in some cases if the client is convicted after trial of greater offenses or enhancements, the law may require the court to impose greater punishment. For example, in one case in which the client was originally charged with commission of a drug offense and with an enhancement alleging possession of a firearm during commission of a drug offense, the client originally pleaded to the drug offense and received probation on condition of service of six months in custody. If the conviction had been reopened and he had been convicted of both, a mandatory probation ineligibility statute would have forbidden probation (barring unusual circumstances). The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted in additional years of prison over and above the prison sentence on the drug offense itself. Under these circumstances, the client may not wish to risk the additional prison time that might result from reopening the case.
 See United States v. Barron, 127 F.3d 890 (9th Cir. 1997).
 Alabama v. Smith, 490 U.S. 794 (1989) (presumption of vindictiveness does not apply when greater sentence is imposed after trial than was imposed after prior guilty plea). If the original sentence was a legally “unauthorized” one (either too great or too small), and the client attacks the conviction, the improper sentence may be set aside at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. People v. Serrato, 9 Cal.3d 753, 764 (1973); United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986).
 E.g., California Penal Code § 2900.5.