Criminal Defense of Immigrants

(B)  Sentence Enhancements and Nature of the Offense.  The Supreme Court held the prior aggravated felony conviction that triggers an enhanced sentence for illegal re-entry after deportation did not constitute a separate criminal offense, but was instead a sentence enhancement that could be imposed even if the prior conviction was not pleaded or proven at trial.[1]  Based on this case, and others,[166] it should be fairly easy to argue that a recidivist sentence enhancement cannot alter the nature of a conviction for immigration purposes.

[167] Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998). Compare Jones v. United States, 119 S.Ct. 1215 (1999) (18 U.S.C. § 2119 [car-jacking statute] described the elements of several distinct criminal offenses, rather than mere sentence enhancements).

[166] See 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).