(D)  Illegal Re-Entry.  The Supreme Court held a prior aggravated felony conviction that triggers an enhanced sentence for illegal re-entry after deportation does 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] 

 

However, the courts generally may not use a prior conviction that has been vacated as legally invalid as a basis on which to enhance an illegal re-entry sentence.[171]  The First Circuit has held otherwise.[172]  This decision is badly reasoned, however, since it failed to account for judicial decisions holding that the validity of the deportation order depends on the continued validity of the conviction on which it was based, so that vacating the underlying conviction renders the deportation order unlawful, even where the conviction was vacated after the deportation occurred.[173]  Vacating a conviction undermines the validity of the original deportation order, throwing into doubt the validity of a later illegal re-entry prosecution, especially where the vacatur occurs before the commission of the illegal entry offense. Counsel may seek collaterally to attack the deportation order on this basis in defense of the illegal re-entry charge. Counsel can challenge the underlying deportation collaterally by a motion to dismiss the indictment, asserting the deportation order resulted from a denial of due process of law that prejudiced the noncitizen.[174]

 

[175] Almendarez-Torres v. United States, 253 U.S. 224 (1998). Compare Jones v. United States, 526 U.S. 227 (1999) (18 U.S.C. § 2119 [car-jacking statute] described the elements of several distinct criminal offenses, rather than mere sentence enhancements).

[171] United States v. Luna-Diaz, 222 F.3d 1 (1st Cir. 2000); United States v. Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir. 1997).

[172] United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001).

[173] See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977). See also Matter of Malone, 11 I. & N. Dec. 730 (BIA 1966).

[174] See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v. Alvarado-Delgado, 98 F.3d 492 (9th Cir. 1996).  Exhaustion of administrative remedies must also be shown. United States v. Garza-Sanchez, 217 F.3d 806 (9th Cir. 2000), cert. denied, 531 U.S. 1180 (2001) (waiver of the right to appeal deportation order prevents defendant from attacking the validity of that order in a later prosecution under 8 U.S.C. § 1326).

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).