(A)  Nature.  Many offenses are punished more seriously under both state and federal law if a firearm was involved in the commission[1] of the offense.  The BIA has, in some cases, held that a firearms sentence enhancement does not mean that the underlying offense itself is a firearms offense for deportation purposes.  In other cases, the BIA has held that a firearms enhancement does make the conviction a firearms offense.  The issue is whether the use of a firearm enhancement alters the nature of the principal offense.[2]  Because of the general lack of clarity in these cases, counsel may want to avoid a firearms sentence enhancement unless absolutely sure it will not cause immigration damage.

 

                In Matter of Rodriguez-Corez,[3] the BIA held that a California conviction for attempted murder did not become a deportable firearms conviction upon a finding that the respondent’s co-defendant had personally used a firearm, thus triggering a sentence enhancement of one year, under California Penal Code § 12022(a).

 

                In making this finding, the BIA noted that California Penal Code § 12022(a) may be applied only if the principal offense does not itself contain use of a firearm as an element of the offense.[4]  The court also noted that the enhancement applied even though it was not the respondent herself who had actually used the firearm.  Finally, the court looked to state law to find that the added punishment imposed by Penal Code § 12022(a) does not create a separate offense, “but merely imposes additional punishment for the felony committed . . . .”[5]

 

                Soon after, in Matter of Lopez-Amaro,[6] the BIA found that a Florida conviction for murder did become a deportable firearms offense when use of a firearm was found under Florida Statutes § 775.087(1).  Although noting that, like California Penal Code § 12022(a), the Florida statute applied only when use of a firearm was not an element of the principal offense, the BIA found that the Florida statute did more than merely add an additional term of imprisonment to the offense, “[r]ather, section 775.087(1) was used to enhance not the penalty but the characterization of the respondent’s offense itself.”[7]  Looking for Florida state law, the BIA noted that if a defendant were to be convicted of both the crime of murder, with the firearm enhancement, plus a conviction under Florida Statutes § § 790.07(2) (use of a firearm during the commission of a felony), that conviction would violate the constitutional protection of double jeopardy.  The court therefore concluded that the application of § 775.087(1) added an additional element to the murder offense, thereby making the offense deportable as a firearms offense. 

 

The Eighth Circuit upheld this decision, finding that § 775.087(1) enhanced the offense, not merely the sentence.[8]  The court noted that under Florida law, a § 775.087(1) finding automatically makes a conviction of possession of a firearm during the commission of a felony a lesser included offense, and that the finding also increases the level of the principal offense (i.e., from a second degree felony to a first degree felony).  The court noted that these points were not true of California Penal Code § 12022.[9]

 

                In Matter of PF,[10] the BIA again considered the question under Florida law.  This time, however, the respondent was convicted of burglary and robbery.  Both these convictions became first degree felonies when the noncitizen carried a deadly weapon or firearm.  The Florida court also imposed a statutory minimum sentence, under Florida Statutes § 775.087(2) (use of firearm in committing certain acts), which [unlike § 775.087(1)] applied regardless of whether possession of a firearm was an element of the principal offense.  Despite the absence of the double jeopardy and lesser included offense aspects present in Lopez-Amaro, the BIA held that the convictions were firearms offenses because the language of those respective statutes increased the level of the offenses upon carrying a firearm.[11]

 

                 The dissent in both Lopez-Amaro and PF believed the level increase distinction between those cases and Rodriguez-Cortez to be meaningless, as they both ultimately only increased the maximum possible punishment.  The dissent suggested, instead, that the test should be whether a conviction of the principal offense would stand even if the firearms “enhancement” were overturned, suggesting that this was the only way to properly determine whether the “enhancement” was really an element of the offense of conviction.[12]

 

                In Matter of KL,[13] the BIA examined 18 U.S.C. § 924(c)(1) (use of a firearm during a drug trafficking crime or crime of violence), and found that it was also a deportable firearms offense because federal law was clear that a conviction under 18 U.S.C. § 924(c)(1) could stand on its own.

[180] But see United States v. Villegas, 404 F.3d 355, 364 (5th Cir. Mar. 17, 2005) (district court erred in imposing firearms enhancement upon conviction of fraudulent use of identification document; the document was used to obtain the firearm, “defendant’s possession of a firearm did nothing to facilitate his use of a fraudulent identification document card or to make it a ore dangerous crime.”).

[181] For more on nature of the conviction, see Chapter 16, supra.  For more on sentence enhancements, see § § 10.56-10.60, supra.

[182] Matter of Rodriguez‑Cortez, 20 I. & N. Dec. 587 (BIA 1992).

[183] Id. at 590 (“the act of being armed with a firearm may not be an element of the charged offense in order for an additional and consecutive term purusant to section 12022(a) to be imposed.”).

[184] Ibid., citing In re Shull, 146 P.2d 417 (Cal. 1944), and People v. Smith, 210 Cal.Rptr. 43 (Cal. Ct. App. 1985).

[185] Matter of Lopez-Amaro, 20 I. & N. Dec. 668 (BIA 1993).

[186] Id. at 672.

[187] Lopez-Amaro v. INS, 25 F.3d 986, 989-990 (8th Cir. Jul. 12, 1994).

[188] Id. at 990 n.3.

[189] Matter of PF, 20 I. & N. Dec. 661 (BIA Jun. 9, 1993).

[190] Compare this case with United States v. Corona-Sanchez, 291 F.3d. 1201 (9th Cir. 2002) (en banc) (California conviction for petty theft with a prior, under Penal Code § 666, which increases level of petty theft from six-month misdemeanor to alternative felony/misdemeanor must be treated as six-month misdemeanor for immigration purposes; recidivist enhancement should not affect nature or maximum sentence of principal offense).

[191] Matter of Lopez-Amaro, 20 I. & N. Dec. 668, 675 (BIA Jun. 1, 1993).

[192] Matter of KL, 20 I. & N. Dec. 654 (BIA Jun. 3, 1992).

SENTENCING " SENTENCE ENHANCEMENTS
United States v. OBrien, 130 S.Ct. 2169 (May 24, 2010) (the fact that a firearm was a machine gun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing).