Criminal Defense of Immigrants

(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).