(A)  Overview of Sentence.  Since perhaps 95% of all criminal cases result in conviction, a sentence of some kind is imposed in almost every case.  There is often considerable flexibility in the construction of a criminal sentence, and bargaining can often trade more of one sentence element for less of another element, or a greater sentence can be imposed on one count of conviction, while a lesser sentence is imposed on another count. 

 

                Defense counsel can do a great deal at sentence to avoid adverse immigration consequences.  In many cases, it is in fact easier to do so at this stage than at any other.  This chapter aims to give defense counsel a complete understanding of the different ways in which a sentence can trigger adverse immigration consequences.  In consultation with immigration counsel,[1] or through doing research directly, defense counsel must identify each of the possible adverse immigration impacts sentence can have on the particular client’s case, and attempt to avoid them.[2]

 

                This chapter discusses the ways in which defense counsel should prepare for, and handle, the matter of sentence for noncitizen defendants.  The roles of court and counsel are discussed from this perspective, see § 10.2, infra, and the goals of sentencing of noncitizens are outlined, see § 10.3, infra, both the criminal goals, see § 10.4, infra, and the immigration-related goals.  See § 10.5, infra.  Counsel’s tasks in preparing for sentence are then outlined, see § § 10.8-10.12, infra.

 

                The handling of the sentence hearing is described in two primary areas: specific tactics for avoiding the most significant forms of immigration damage, see § § 10.14-10.22, infra, and arguments counsel can make in mitigation of sentence of a noncitizen defendant.  See § § 10.23-10.30, infra.  Selected sentencing issues related to noncitizen defendants in federal, see § 10.31, infra, and state court are briefly covered.  See § 10.32, infra.  The advisability of conducting an evidentiary sentence hearing is also discussed.  See § 10.33, infra.

[1] See § § 3.42-3.46, supra.

[2] See Chapter 2, supra.

Eleventh Circuit

SENTENCE IMPOSED " CUMULATIVE ORIGINAL SENTENCE PLUS PROBATION VIOLATION SENTENCE
Dixon v. U.S. Atty. Gen., 768 F.3d 1339 (11th Cir. Oct. 1, 2014) (Florida conviction for aggravated fleeing, Fla. Stat. 316.1935(4)(a), is categorically a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the original sentence to incarceration, plus the additional sentence to incarceration imposed as a result of a probation violation, totalled one year or more).

Other

CRIMINAL DEFENSE - SENTENCE
M. Shein, Cultural Issues in Sentencing, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 625 (2d ed. 2007).