Tooby's California Post-Conviction Relief for Immigrants

(B)

Federal Criminal Definition of "Felony."  Under criminal federal law, “felony” is generally defined, for use by federal criminal courts, as an offense for which the maximum term of imprisonment is “more than one year.”[6]  Moreover, the U.S. Sentencing Guidelines define “felony” to include “any federal, state or local offense punishable by imprisonment for a term exceeding one year.”[7]  The Ninth Circuit has applied this generic federal definition of felony in a related context.[8]  Therefore a misdemeanor with a possible maximum term of imprisonment of one year does not constitute a felony, for immigration purposes, even if a sentence of one year is imposed.

[6] 18 U.S.C. § 3559(a)(5).  Compare 18 U.S.C. § 3559(a)(6) (a Class A misdemeanor is an offense with a maximum sentence of “one year or less but more than six months”).

[7] U.S.S.G. § 2L1.2, Application Note 1.

[8] United States v. Arrellano-Torres, 303 F.3d 1173 (9th Cir. 2002) (Nevada four-year suspended sentence for possession of a controlled substance constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), even though execution was required to be suspended under a state statute forbidding actual incarceration for possession, and was held to be a felony under the federal test for determining whether a conviction is a felony since the maximum sentence possible was in excess of one year).