Criminal Defense of Immigrants

(A)  In General.  A recidivist sentence enhancement should not alter the nature of a conviction for immigration purposes, but may have other effects.  The Ninth Circuit holds that a sentence imposed on account of a recidivist sentence enhancement is not imposed for the offense itself, and therefore does not count for purposes of determining whether a certain sentence has been imposed by the court to qualify a conviction as an aggravated felony. [164]  The Fifth Circuit disagrees.[165]

[164] United States v. Rodriquez, 464 F.3d 1072 (9th Cir. Oct. 5, 2006) (Washington convictions for delivery of a controlled substance, in violation of Wash. Rev. Code § 9A.20.021(1)(c), did not qualify as predicate “serious drug offense” “for which a maximum term of imprisonment of ten years or more is prescribed by law,” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), since the statutory maximum for each offense was five years, and was increased only as a result of a recidivist sentence enhancement, which cannot be considered as punishment for the offense itself), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[165] Mutascu v. Gonzales, 444 F.3d 710 (5th Cir. Apr. 3, 2006) (California conviction of petty theft with a prior, in violation of Penal Code § 666, with one-year sentence imposed is an aggravated felony theft offense), rejecting United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002).