Criminal Defense of Immigrants

(B)  Specific Tactics.  A safe haven sentence imposed of less than a certain length can be achieved in several ways:

(1)  Obtaining Original Sentence Shorter Than the Trigger Amount. To achieve a safe haven sentence of less than a trigger amount, counsel can ask the court (1) to decline to order a prison sentence at all, and to require service of no more than 364 days in custody or less as a condition of probation, or (2) to impose a sentence shorter than one year as a straight judgment.

                (2)  Waive Presentence Custody Credits.  If the defendant has served a certain amount of time in custody before sentence, and waives those credits, s/he can receive a “formal” sentence of less than the trigger amount while actually serving the same amount of time s/he would have served on a much greater sentence (depending on the rate at which good conduct credits are earned for the offense in the jurisdiction).

                (3)  Waive Future Conduct Credits.  If the defendant waives future credits, and receives a nominal sentence of just below the trigger amount, s/he will actually serve the full sentence ordered.  In a jurisdiction where s/he would receive 50% credits off a prison sentence, s/he would actually serve about the same number of days in custody on a 360-day sentence as s/he would have served on a nominal two-year prison sentence.  Counsel can therefore expand the actual time served to be equivalent to a sentence considerably longer than the sentence ordered by the court, and thus obtain non-trigger sentences for more serious cases.

                (4)  Stacking Consecutive Sentences on Different Counts.  Counsel can ask the court to sentence the defendant to shorter, non-trigger sentences on different counts, and then order they be served consecutively, so long as each sentence fails to qualify independently as a trigger length.  For example, a defendant could receive 360-day sentences on four different theft convictions, to run consecutively, without receiving a “sentence imposed” of one year or more on any single count.  No single count would be considered to be an aggravated felony conviction, and the counts are not aggregated for this purpose.

                (5)  Sentence Enhancements.  Some courts have held that sentences imposed on account of sentence enhancements, rather than for the conviction itself, do not count as part of the sentence ordered for the conviction.  See § §   10.56-10.60, 10.64(B)(10), infra.  In these jurisdictions, counsel can suggest the court impose a sentence under a sentence enhancement statute, rather than for the offense itself, and the sentence-enhancement portion of the sentence will not count as part of a sentence ordered for the offense of conviction itself.[51] 

                (6)  Reduction from Felony to Misdemeanor.  If the criminal court reduces the level of the offense from felony to misdemeanor, that reduction is binding on the immigration courts.[52]  In modifying a sentence in this way, the state court is also modifying the maximum possible sentence the court can impose to the misdemeanor maximum.[53]  Therefore, even if the court originally imposed a longer sentence than the new misdemeanor maximum, the later sentence governs for immigration purposes, and the sentence ordered must now be considered to be no greater than the misdemeanor maximum for the reduced offense.  See § 11.10, infra.

[51] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). But see United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same).

[52] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court are bound by state court reduction of California “wobbler” offense from a felony to a misdemeanor offense, since reductions of sentences by state courts are qualitatively different from state expungements).

[53] See also Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999). See § § 11.13-11.15, infra.