Criminal Defense of Immigrants

(E)  Sentence Enhancements.  The Ninth Circuit has held that the California offense of petty theft with a prior theft conviction cannot be considered an aggravated felony theft offense because petty theft itself is punishable by a six month maximum sentence, and the felony aspect of petty theft with a prior conviction is a recidivist sentence enhancement that cannot be considered when determining whether the conviction is an aggravated felony.[1156]  See § 10.56, supra.  The Fifth Circuit disagrees.[1157]

[1156] United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).  See also 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).

[1157] Mutascu v. Gonzales, 444 F.3d 710 (5th Cir. Apr. 3, 2006) (California conviction of petty theft with a prior, in violation of Penal Code § 666, with one-year sentence imposed is an aggravated felony theft offense).