Criminal Defense of Immigrants

(D)  Illegal Sentences.  If a court imposes an illegal sentence, i.e., a sentence longer than the law allows, it is not a sentence imposed of the nominal length, but only of the maximum length legally permitted for the level of offense.  For example, where a person was convicted of a misdemeanor (with a six-month maximum), but the court ordered the defendant to serve a 12-month sentence, the sentence ordered for immigration purposes was arguably only the six months that was the maximum lawful sentence for the misdemeanor.[1]

[242] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor conviction of “theft by control of property with a value of $250 or more,” in violation of A.R.S. § § 13-1802(A)(1), (C), arguably would not constitute a one-year sentence imposed for removal purposes since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, requiring remand to the BIA to consider the issue in the first instance).