Criminal Defense of Immigrants

(B)  Aggravated Felonies.  Noncitizens with aggravated felony prior convictions are affected in several ways.  First, the aggravated felony prior conviction may constitute an element of the criminal offense with which the defendant is charged.  Second, the aggravated felony prior may increase the statutory maximum prison sentence that may be imposed upon conviction, or trigger a sentence enhancement, i.e., an increase in the Base Offense Level, under the United States Sentencing Guidelines.[510]  Third, certain federal convictions for illegal re-entry themselves constitute aggravated felonies.[511] 

Any person who knowingly assists a noncitizen, who is ineligible for admission into the United States because of an aggravated felony conviction, to enter the United States is guilty of a federal felony punishable by a maximum of 10 years in federal prison, and a fine.[512]  The existence of the aggravated felony conviction appears to constitute an element of this offense, which must therefore be alleged in the charging paper, and proven to the satisfaction of the finder of fact beyond a reasonable doubt.         

[510] See § 19.22, infra.

[511] INA § 101(a)(43)(O), 8 U.S.C. § 1101(a)(43)(O).

[512] INA § 277, 8 U.S.C. § 1327, as amended by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7346, 102 Stat. 4181, and as amended by the Immigration Act of 1990, Pub. L. No. 101-649, § 543, 104 Stat. 4978.