(D)  Sentence Enhancements Affecting Felony/Misdemeanor Level of Offense.  Certain immigration consequences are triggered by a conviction of a felony or misdemeanor offense.  See § 10.86, infra.  If the sentence enhancement is considered to be an element of the offense, see § 10.57(B), supra, the sentence enhancement can affect the immigration consequences that depend on the felony or misdemeanor level of the offense.[159]

 

                For example, the California offense of petty theft is a misdemeanor with a six-month maximum.  Petty theft with a prior conviction, however, is transformed by the prior conviction sentence enhancement into a felony with a three-year maximum.  If the three-year maximum sentence is considered to be imposed for the offense itself, then the conviction would be considered to be a felony.  The Ninth Circuit, however, has held that a recidivist sentence enhancement is separate from the offense itself, so the offense cannot be considered to be a felony. [160]  See § 10.58, infra.  Under both California and federal law, an offense is a misdemeanor unless the maximum possible sentence is in excess of one year.

 

The Ninth Circuit has found that conduct-based sentence enhancements can alter whether the court considers an offense to be a felony or a misdemeanor.[161]  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.”[162]

[159] 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).

[160] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

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

[162] Id. at 911.

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).