Criminal Defense of Immigrants

The definition of aggravated felony applies in two contexts.

(a)           In immigration proceedings, conviction of an aggravated felony triggers deportation, bars eligibility for some forms of relief, imposes requirements of mandatory detention, blocks federal review of some removal orders, and triggers other adverse consequences.  See § § 19.96, et seq., infra.

(b)           In federal criminal proceedings, a prior conviction of an aggravated felony will increase the maximum and Guidelines sentence for the federal criminal offense of illegal re-entry after deportation,[250] and specific aggravated felonies appear in other criminal statutes.  

The U.S. Sentencing Guidelines currently impose an 8-level upward departure in the base offense level for illegal re-entry[251] if a defendant has before deportation been convicted of an aggravated felony.[252]  However, a 16-level upward departure will be imposed if the conviction is for a felony that is: (i) a drug trafficking offense with a sentence imposed in excess of 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a terrorism offense; (vi) human trafficking; or (vii) alien smuggling.[253]  A conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, will result in a 12-level increase.[254]  Most of these offenses would also be considered aggravated felonies.  A conviction for any other felony, or three or more convictions for misdemeanors that are non-aggravated felony crimes of violence or drug trafficking offenses will result in a 4-level increase.[255]

                Although the United States Supreme Court has suggested otherwise,[256] the BIA and a number of circuit courts have recognized that an offense that may not be an aggravated felony or a crime of violence for immigration purposes may be an aggravated felony or a crime of violence for sentencing purposes.  At least two courts have also found that while a categorical analysis must be applied to an offense to determine whether it is an aggravated felony for immigration purposes, a factual approach may be applied in some cases to decide this question in a sentencing context.[257]  Except where the language of the criminal statutes or guidelines differs from the language of the immigration statutes, the lower courts may be expected to fall in line with the Supreme Court’s approach of adopting a single, uniform definition of aggravated felony that applies in both contexts.

[250] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[251] For more on illegal re-entry, see § 15.39, supra.

[252] U.S.S.G. § 2L1.2(b)(1)(C) (2006).

[253] U.S.S.G. § 2L1.2(b)(1)(A) (2006).

[254] U.S.S.G. § 2L1.2(b)(1)(B) (2006).

[255] U.S.S.G. § § 2L1.2(b)(1)(D)-(E) (2006).

[256] See Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 384 (Nov. 9, 2004) (suggesting that a criminal statute must be interpreted in a uniform manner, regardless of whether the statute is being examined in a criminal or immigration context).

[257] United States v. Mendoza-Sanchez, 456 F.3d 479 (5th Cir. Jul. 14, 2006) (Arkansas conviction of burglary, in violation of Ark.Code Ann. 5-39-201(a), constituted enumerated offense of “burglary of a dwelling,” justifying application of sentencing guideline’s 16-level crime of violence enhancement; although the record of conviction did not show burglary of a dwelling, defendant admitted to district court in illegal re-entry prosecution that offense was, in fact, burglary of a dwelling); United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (determination of whether taking indecent liberties with a child constituted “sexual abuse of a minor” for purposes of determining whether the offense was a “crime of violence” under U.S.S.G. § 2L1.2, is to be made by use of a “ordinary contemporary, and common meaning” approach rather than by use of the “categorical analysis” used to determine whether an offense is a crime of violence under 18 U.S.C. § 16); United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (disagreeing with United States v. Krawczak, 331 F.3d 1302, 1307 (11th Cir. 2003), the court held that the underlying facts of a prior conviction may be examined to determine whether the smuggling offense was committed for profit, and categorical approach is inapplicable); United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, as opposed to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case; a conviction of interstate transportation in aid of racketeering with the intent to promote cocaine and marijuana trafficking, as disclosed by the language of the charge, was therefore held to be a drug trafficking conviction for this purpose).