(B)  Sentence Enhancements Affecting Nature of the Conviction.  A sentence enhancement may or may not alter the nature of a conviction for purposes of triggering conviction-based immigration consequences.  For example, a defendant with a criminal conviction for a non-firearms offense, but with a sentence enhancement for use of a firearm by a principal in the commission of the offense, may be found removable as a noncitizen convicted of a firearms offense.  See § 10.59, infra.

 

Generally, a recidivist sentence enhancement should not be considered to be part of the record of conviction, for purposes of determining the elements of the offense of which the noncitizen was convicted.[151]  The BIA considers this an open question: 

 

We thus have no occasion to opine on situations in which the above or a similar aggravating aspect of the offense is established by virtue of a statutory penalty enhancement for marijuana possession offenses, rather than, as here, being a formal element. See Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000)(noting that a sentence enhancement is the “functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict”).[152]

 

Counsel should therefore be prepared to litigate this question wherever it arises, and can file a petition for review if necessary.

 

                The same may not be true for sentence enhancements based on conduct, such as an assault conviction enhanced by use of a deadly weapon.  The Ninth Circuit has found that conduct-based sentencing enhancements can alter whether the court considers an offense to be a felony or a misdemeanor.[153]  The court found that an Oregon conviction for assault in the fourth degree, while not usually a felony, became a felony for immigration purposes upon a sentence enhancement based on the presence of a child when the offense was committed.  The key difference, the court found, was that “it is the facts of the offense, not the legal history of the offender, that gives rise to the maximum available sentence of more than one year.”[154]  It is unclear whether this case could also be applied to say that a conduct-based sentencing enhancement (i.e., for causing great bodily injury) could be used to alter the nature of the conviction (i.e., whether it is a crime of moral turpitude or not).

 

It can be difficult to determine whether a statute defines a sentence enhancement, as opposed to elements of an offense.  See § 23.4(A), infra.  The Supreme Court has held that where a statute lists factors that increase the statutory maximum sentence for an offense, the Sixth Amendment requires considering them to be elements of the offense that must be pleaded in the charging paper, and submitted to the jury for decision beyond a reasonable doubt.[155]  Immigration courts have already begun in unpublished decisions to use this authority to conclude that conduct-based sentence enhancements are not sentence enhancements that have no effect on the nature of the offense of conviction, but rather constitute elements of the offense that can be considered in determining whether a conviction falls within a ground of removal such as an aggravated felony definition.  This Supreme Court authority, however, does not apply to recidivist-based sentence enhancements, which are not considered to be elements of the offense for jury-trial purposes in criminal cases.  Therefore, there is no basis to conclude that recidivist sentence enhancements are elements of an offense.[156]

 

Counsel can argue that the criminal context, in which the constitutional right to a jury trial depends on whether a factor is an element of the offense or a sentence enhancement, is different than the immigration context in which the question is the nature of the offense of conviction.[157]  Simply put, the offense of conviction is different from a sentence enhancement for purposes of determining the nature of the offense of conviction, even though the sentence enhancement might be considered an element of the offense for jury trial purposes because it is the same in increasing the statutory maximum possible sentence.  Counsel can also argue that it violates due process to change this rule, so as to include sentence enhancements within the nature of the conviction, when that was not the rule at the time the defendant entered the plea in reliance on the previous rule.[158]

[151] Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002); see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for a recidivist does not define a separate crime).  See also United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant due to previous drunk driving convictions did not convert drunk driving offense to a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001).

[152] Matter of Moncada-Servellon, 24 I. & N. Dec. 62, 64 n.2 (BIA 2007).

[153] United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir. Aug. 17, 2005).

[154] Id. at 911.

[155] See Cunningham v. California, ___ U.S. ___, 127 S.Ct. 856 (Jan. 22, 2007) (following its precedents in Apprendi, Blakely, Ring, and Booker, the court held that California’s determinate sentencing law is unconstitutional, in violation of the Sixth Amendment, “[b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . . .”).

[156] Almendarez-Torres v. United States, 523 U.S. 224 (1998).

[157] See United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such enhancement could not be considered in determining the length of sentence imposed).

[158] See INS v. St. Cyr, 533 U.S. 289 (2001); Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 402 (BIA May 13, 2002) (Boardmembers Rosenberg and Espenoza, concurring and dissenting)(applying St. Cyr reasoning to change in legal rule by Board of Immigration Appeals).

CATEGORICAL ANALYSIS " ELEMENT " DEFINITION
Alleyne v. United States, __ S.Ct. __ (2013) (any fact that increases the mandatory minimum is an "element" that must be submitted to the jury, rather than the judge).

BIA

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

Lower Courts of Ninth Circuit

CAL POST CON - WOBBLER - SENTENCE ENHANCEMENT
People v. Feyrer, 151 Cal.App.4th 506 (Cal.App. 2 Dist. May 29, 2007) (trial court may reduce a felony "wobbler" offense to a misdemeanor despite the admission of an enhancement that a defendant inflicted great bodily injury in the commission of the offense).