Criminal Defense of Immigrants


§ 11.13 D. Reduction of Felony to Misdemeanor

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Under certain circumstances, the sentencing court has jurisdiction to grant a motion to reduce a felony to a misdemeanor.  These motions may freely be granted at the discretion of the court, and they can therefore constitute powerful tools to reduce or eliminate certain adverse immigration consequences of criminal convictions and sentences.


A conviction that can be either a felony or a misdemeanor under state law remains a felony, if the original plea was to a felony, until it has been reduced to a misdemeanor by the court in which the conviction occurred.[114]


                This type of post-conviction relief has two chief effects on the sentence that alter the immigration consequences of the conviction:


                (1)  It reduces a felony to a misdemeanor for immigration purposes, see § 10.87, supra; and


                (2)  It reduces the maximum possible sentence from the felony maximum to the misdemeanor maximum for immigration purposes.  This can also reduce the sentence imposed to the length of the maximum possible sentence for the conviction as a misdemeanor.[115]  See § 10.76, supra.

[114] United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative “felony-misdemeanor” or “wobbler,” the alternative sentence ultimately executed is the one to be used in federal sentencing guidelines calculations).

[115] E.g., United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § § 484(a), 666, was not an aggravated felony theft offense because the two-year sentence was imposed as a result of a recidivist sentence enhancement, and the maximum for the petty theft offense itself was only six months, so the maximum possible sentence imposed was only six months).