Criminal Defense of Immigrants


§ 10.77 (B)

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(B)  Effect of Sentence Enhancements.  In the Ninth Circuit, the immigration authorities will ignore any maximum that may be imposed on account of a recidivist sentence enhancement, and consider only the maximum term of imprisonment that may be imposed on account of the unenhanced offense of conviction.  Other circuits may not agree, or have not yet considered the question.  See § 10.58, supra.


Under the federal, and some state, sentencing schemes, the statutory maximum for an offense may not be legally imposed solely upon a finding that the basic elements of the offense have been committed.  Instead, the statutory maximum can only be imposed upon a finding of additional factors.  The United States Supreme Court recently held that any factual sentence enhancement that increases potential punishment over a statutory maximum constitutes an element of the offense and must be found by the jury.[320]  In the immigration context, this holding may therefore limit the ability of the immigration authorities to establish that a given crime has a “maximum possible sentence” in certain cases.  The immigration authorities may be required to show not only that the noncitizen was found guilty of the minimum elements, but that s/he was also found guilty of the additional elements that would warrant the imposition of the greater maximum.[321]

[320] Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), clarifying rule of Apprendi v. New Jersey, 530 U.S. 466 (2000).

[321] But see United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004) (whether prior state conviction may be considered as being punishable by more than one year’s imprisonment for federal enhancement purposes depends upon the statutory maximum for the offense, even if state’s sentencing guidelines do not permit imposition of the full sentence).