(C) Certain Maximum Sentence.   A few offenses are defined as aggravated felonies on the basis of the potential or maximum possible sentence that may be imposed either for the particular offense or some related offense: organized crime (RICO) offenses and the two varieties of failure to appear in court in criminal cases (to answer a charge, or to appear for sentence).  See § § 19.86, 19.65-19.67, infra. 

 

                A sentence imposed on the basis of a recidivist sentence enhancement does not count as part of the sentence imposed for the offense itself, for purposes of meeting an aggravated felony sentence requirement.  See § § 10.56-10.60, supra.  This principle can be used to argue that a potential sentence that is a felony, or that is a certain number of years, only because of the operation of a recidivist sentence enhancement, does not count as satisfaction of a potential sentence aggravated felony requirement.[86]

 

                If the Constitution limits the sentence the criminal court can impose, immigration counsel could argue that the maximum legal sentence does not exceed the constitutionally permitted level.[87]  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 5.57(D) (2005).

[86] See Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (California offense of petty theft with a prior burglary conviction is not a crime for which a sentence of one year or more may be imposed for purposes of INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) ([CMT within five years of entry, punishable by one year or more]); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself); United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc) (two-year sentence imposed for a misdemeanor petty theft conviction, which was made a felony by a sentence enhancement based on a prior petty theft conviction, was not imposed “for” the theft offense).

[87] United States v. Villegas, 404 F.3d 355 (5th Cir. Mar. 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four-level enhancement to 18 U.S.C. § 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents).

AGGRAVATED FELONIES - AGGRAVATED MISDEMEANOR
Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) ("We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an "aggravated felony." A "felony," we have come to understand, is a "serious crime usu[ally] punishable by imprisonment for more than one year or by death." Black's Law Dictionary 694 (9th ed.2009) (hereinafter Black's). An "aggravated" offense is one "made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.").

AGGRAVATED FELONY - SENTENCE
CD4:20.31;CMT3:4.7 INADMISSIBILITY - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) (petty theft conviction could not qualify as an aggravated felony because the maximum possible sentence for a violation without statutory recidivist enhancements was six months).

Second Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - FELONY -- MASSACHUSETTS MISDEMEANOR CONVICTION OF ASSAULT ON OFFICER CONSTITUTED FELONY UNDER FEDERAL DEFINITION OF FELONY SINCE MAXIMUM TERM OF IMPRISONMENT EXCEEDED ONE YEAR
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts conviction of assault on police officer, under Massachusetts General Laws chapter 265, section 13D, with suspended two-year sentence to imprisonment, constituted felony for purposes of being a crime of violence aggravated felony, as defined under 18 U.S.C. 16(b), since the court applied the federal definition of felony, 18 U.S.C. 3559(a), and the maximum term of imprisonment for the offense of conviction was in excess of one year: "Regardless of how Massachusetts law defines it, we are obligated to apply the federal-law definition of a felony. Cf. United States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (observing that "[t]he immigration laws contain no provision ... indicat[ing] that they are to be interpreted in accordance with state law," and holding that whether a person has been convicted of an aggravated felony within the language of 8 U.S.C. 1326(b)(2) "is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State" (internal quotation marks omitted)).").

Third Circuit

AGGRAVATED FELONY " SENTENCE
Chavez-Alvarez v. Attorney General, 783 F.3d 478, 484 (3rd Cir. Apr. 16, 2015) (government failed to show noncitizens sentence for violation of Uniform Code of Military Justice Article 125, 10 U.S.C. 925 (sodomy), was for at least one year to qualify as an aggravated felony crime of violence; noncitizen was sentenced to 18 months jail total following conviction of several offenses, but the record did not specify a sentence of more than one year specifically for the sodomy offense; The record is devoid of any indication as to how or if the military judge apportioned the general sentence among Chavez"Alvarez's various convictions. Nor does the Manual for Courts"Martial contain any suggestion that a military judge should do so.),

AGGRAVATED FELONY - ALIEN SMUGGLING - MISDEMEANOR
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an "aggravated felony" even though only punishable as a misdemeanor under federal law).

Fifth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED
United States v. Narez-Garcia, ___ F.3d ___, 2016 WL 1274034 (5th Cir. March 31, 2016) (Arkansas conviction of third-degree domestic battery, with a sentence to confinement of ___ months and Suspended Imposition of Sentence: 72 months, did not warrant reversal as the basis for imposing an 8-level enhancement in the federal sentence for illegal reentry after deportation, since the defendant did not sufficiently raise the insufficient sentence argument in the trial court, and the significance of the suspended imposition of sentence in Arkansas law, was not sufficiently clear). NOTE: While the noncitizen in this case was limited in his ability to argue the point because he had failed to raise it earlier, the dissenting opinion lays out a good argument on the difference between directly suspending a sentence, versus imposing and then suspending a sentence. Apparently there is room to argue that there is a distinction between these two judicial acts that may mean that a straight suspended sentence is more similar to execution of sentence suspended under California law, which does not count as a sentence for immigration purposes.

Sixth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCE - SENTENCE IMPOSED IS THE SENTENCE ACTUALLY SERVED, OR THE MINIMUM SENTENCE GIVEN, WHICHEVER IS GREATER, RATHER THAN THE MAXIMUM PERIOD UNDER AN INDETERMINATE SENTENCE
Shaya v. Holder, 586 F.3d 401 (6th Cir. Nov. 9, 2009) ("for the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually . . . served or the minimum sentence given, whichever is greater, as this better incorporates the judge's discretion and determinations than the statutory maximum term."; "Because the maximum term of a Michigan sentence will always be the maximum statutory term, measuring a Michigan sentence by its maximum term would thwart Congress's intent to measure some aggravated felonies by the statutory maximum and others, like crimes of violence, by the sentence actually imposed.").

NOTE: The reasoning of this decision was based upon the particularities of Michigan indeterminate sentencing, and may or may not be applicable to other states, even within the Sixth Circuit.

Ninth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED " ONE YEAR IS DEFINED AS 365 DAYS, REGARDLESS OF LEAP YEARS
Habibi v. Holder, 658 F.3d 977 (9th Cir. Sept. 14, 2011) (the phrase "one year" is defined as 365 days, regardless of leap years; noncitizen was deportable for aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though his sentence was served during a leap year).

Eleventh Circuit

AGGRAVATED FELONY - SENTENCE.JUDICIAL REVIEW - RES JUDICATA
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (respondent was initially convicted of robbery and sentenced to less than 365 days, he was charged with deportability based on two crimes of moral turpitude, but was granted cancellation of removal, respondent then violated probation and was sentenced to 6 years imprisonment, the DHS brought new proceedings charging the same robbery conviction was an aggravated felon; this was not barred by res judicata, because the probation violation made the offense an aggravated felony, and cancellation of removal only works to avoid being removed on the basis of the current charges, but not any subsequent proceeding).