For an offense to be a crime of violence under 18 U.S.C. § 16(b), it must be a felony, rather than a misdemeanor or other more minor offense.[451] 

 

                It is generally understood that for this purpose, if the maximum possible custodial sentence is in excess of one year, the conviction will be considered a felony,[452] even if the state labels the offense differently.[453]  This is an open question in the Ninth Circuit.[454]

 

                A conviction that otherwise qualifies as a crime of violence under 18 U.S.C. § 16(b) will not be an aggravated felony under this subcategory if it is (a) not a felony conviction originally, or is (b) later reduced to a misdemeanor or other lesser level of offense.[455]  This reasoning holds true not only for immigration cases, but also for illegal re-entry sentencing cases.[456]

 

                A conviction that is a felony only because of the operation of a recidivist sentence enhancement has been held not to be a felony in the Ninth Circuit.[457]  On the other hand, the elevation of a misdemeanor to a felony because of the operation of a conduct-based sentence enhancement, rather than one based on prior convictions, will be considered a felony conviction in the Ninth Circuit.[458]

 

                An argument has been suggested that the maximum possible sentence for an offense, for purposes of determining whether it is a felony conviction under the federal “more than a year” test, is the maximum legal sentence, either applying applicable sentencing guidelines or the constitutional limitations enunciated by the Supreme Court in Booker.[459]  The Ninth Circuit, however, has rejected this argument, holding that the statutory maximum, not the sentence range under applicable sentencing guidelines, determines whether a given conviction qualifies as a felony for federal sentencing purposes.[460]

[451] 18 U.S.C. § 16(b) specifies that the offense must be “any other offense that is a felony. . . .”  For example, a federal district court has held that a California conviction for possession of a dangerous weapon cannot constitute a crime of violence under 18 U.S.C. § 16(b) because it encompasses misdemeanors.  United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185, 1190 (D. Kansas 2000).

[452] See § 10.87, supra.

[453] United States v. Hernandez-Garduno, 460 F.3d 1287 (10th Cir. Aug. 21, 2006) (Colorado conviction of a “misdemeanor” punishable by a maximum of 18 months imprisonment is a “felony” for purposes of illegal re-entry sentencing enhancement that requires conviction of a “felony” crime of violence).

[454] Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves open the question whether the term “felony” for purposes of 18 U.S.C. § 16(b) is defined by the state label or the federal test of whether it carries a possible term of imprisonment exceeding one year). See also Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir. 2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir. 1998).

[455] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).  See also LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[456] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.23 (2005).  But see United States v. Gonzalez-Tamariz, 310 F3d 1168 (9th Cir. 2002) (no error in applying 16-level enhancement to sentence for illegal re-entry because battery causing substantial bodily harm meets federal definition of aggravated felony regardless of state law label as a misdemeanor, and aggravated felony definition plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is at least one year).

[457] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[458] United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).

[459] United States v. Booker, 125 S.Ct. 738 (2005).

[460] United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal.Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).