(C)  Sentence Enhancements and Level of the Offense.  At least within the Ninth Circuit, a recidivist sentence enhancement cannot be used to determine whether the offense is to be considered a felony or a misdemeanor, as where the defendant is convicted of petty theft with a prior. [168]  Nor should a second simple possession conviction become an aggravated felony because it is a felony under federal law.  See § 19.58(C), infra.[169]  The Seventh Circuit sub silentio disagrees, counting a felony as a felony even though it is a felony solely because of a recidivist sentence enhancement.[170]

[168] Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (California offense of petty theft with a prior burglary conviction is not a crime for which a sentence of one year or more may be imposed for purposes of INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (CMT within five years of entry, punishable by one year or more)); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself); United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc) (two-year sentence imposed for a misdemeanor petty theft conviction, which was made a felony by a sentence enhancement based on a prior petty theft conviction, was not imposed “for” the theft offense). 

[169] Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (under federal law, a second possession conviction is not made a “felony” for this purpose by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), had been overruled by United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc)); United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003).

[170] Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1)(h)(1), was punishable as a felony under state law because of an unrelated prior conviction, and therefore was an aggravated felony under the drug-trafficking portion of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), even though the state felony characterization depended on a recidivist enhancement), failing to discuss United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

AGGRAVATED FELONY - SENTENCE
CD4:20.31;CMT3:4.7 INADMISSIBILITY - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) (petty theft conviction could not qualify as an aggravated felony because the maximum possible sentence for a violation without statutory recidivist enhancements was six months).

BIA

SENTENCE ENHANCEMENT - RECIDIVISM AS AN ELEMENT OF CONVICTION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 389 (BIA Dec. 13, 2007) (en banc) ("facts leading to recidivist felony punishment, such as the existence of a prior conviction, do not qualify as "elements" in the traditional sense. Almendarez-Torres v. United States, 523 U.S. 224, 228-35 (1998).").

SENTENCE - RECIDIVIST SENTENCE ENHANCEMENT
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 393 n.8 (BIA Dec. 13, 2007) (en banc) ("Aliens in removal proceedings have no constitutional right to appointed counsel, so allowing facts about recidivism to be determined by an Immigration Judge in the first instance could raise due process concerns. Chewning v. Cunningham, 368 U.S. 443, 447 (1962) (finding that due process requires the appointment of counsel to a defendant charged as an habitual offender under Virginia law in light of the complexity of the recidivism issue).").

Ninth Circuit

SENTENCE " SENTENCE IMPOSED " RECIDIVIST SENTENCE ENHANCEMENT SENTENCE IS SENTENCE IMPOSED
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (California felony petty theft convictions under Penal Code 484(a) and 666 constituted aggravated felony theft offenses, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for illegal re-entry sentencing purposes); declining to follow United States v. Corona"Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); following United States v. Rodriquez, 553 U.S. 377, 382-386 (2008) (an increased, recidivist sentence is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one so the sentence imposed for the sentence enhancement does relate to the commission of the repeat offense and is clearly part of the sentence prescribed by law; therefore a recidivist sentence constitute a sentence imposed for determining whether a prior conviction qualifies as a predicate offense).

SENTENCE - RECIDIVIST ENHANCEMENTS
United States v. Carr, __ F.3d __, 2008 WL 200648 (9th Cir. Jan. 25, 2008) (Washington felony conviction for violation a protection order, in violation of RCW 26.50.110(5), was a felony for purposes of finding defendant a felon in possession of a firearm; although violation of a protection order is itself a gross misdemeanor, defendant was convicted under subsection (5), for repeat offenders, and to convict under (5), the prosecution must prove the prior beyond a reasonable doubt).

NOTE: The court here distinguished United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002), on the basis that 18 U.S.C. 921(a)(20) requires that the determination of whether the conviction is a felony or a misdemeanor be made according to state law, while in the aggravated felony and federal sentencing contexts, the categorical approach is used to determine whether the offense would be a felony under federal law.

NATURE OF OFFENSE - ELEMENTS OF OFFENSE - SENTENCE ENHANCEMENTS - RECIDIVIST ENHANCEMENTS
United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (prior convictions are not elements of offense, and need not be pleaded or found beyond reasonable doubt by jury, to impose a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1): "The Court likewise preserved the exception for prior convictions in Blakely v. Washington, 542 U.S. 296, 301 (2004); United States v. Booker, 543 U.S. 220, 244 (2005); Cunningham v. California, 127 S.Ct. 856, 864, 868 (2007); and, most recently, James v. United States, 127 S.Ct. 1586, 1600 n. 8 (2007).").

SENTENCE - MAXIMUM POSSIBLE TERM - MAXIMUM TERM ENHANCED BY RECIDIVIST SENTENCE ENHANCEMENT DOES NOT COUNT FOR PURPOSES OF ACCA BECAUSE RECIDIVISM DOES NOT RELATE TO THE COMMISSION OF THE OFFENSE
United States v. Rodriquez, 464 F.3d 1072, 1079, 1082 (9th Cir. 2006) (Washington conviction for delivery of a controlled substance, in violation of Washington Revised Code 9A.20.021(1)(c), which carried a maximum term of five years for the substantive crime, but was enhanced to ten years as a "second or subsequent offense[ ]" under a recidivism provision, did not qualify as a "serious drug offense" under the pertinent definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. 924, et seq. ("an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law. " (quoting 18 U.S.C. 924(e)(2)(A)(ii)) (emphasis in original), because, following Corona-Sanchez, Rodriquez's prior controlled-substance violation could not be classified as a "serious drug offense," though he received an enhanced sentence of ten years under the recidivist statute, because "recidivism does not relate to the commission of the offense."), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), and Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. 2004).