Criminal Defense of Immigrants

(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).