Tooby's California Post-Conviction Relief for Immigrants

(B)

Effects on Federal Sentences.  While this chapter concentrates on the effect of reduction of the level of the offense on the defendant’s immigration situation, it is important to note that such a reduction may have important effects on criminal sentences of immigrants.  For example, one felony conviction raises the statutory maximum sentence of a noncitizen convicted of illegal re-entry from two to 10 years.[81]  The United States Sentencing Guidelines also attach importance to misdemeanor and felony convictions, which may be ameliorated by the reduction of a felony to a misdemeanor, or a misdemeanor to an infraction.  Finally, in a criminal prosecution for illegal re-entry following removal and prior conviction, a severe sentence enhancement is imposed for conviction of certain felony offenses, regardless of whether any sentence to imprisonment was imposed.[2]  Reduction of a felony to a misdemeanor should remove exposure to this sentence enhancement in the event the person is removed and illegally re-enter.

[82] 8 U.S.C. § 1326(b)(1).

[81]  See USSG § 2L1.2(b)(1)(A), and Application Note 1.(B)(iii).  A prior  aggravated felony conviction will cause an 8-level increase in federal sentence, while these felony convictions will cause a 16-level increase.  The offenses that can cause a 16-level increase based on a felony, but not misdemeanor, conviction, regardless of sentence, include: a crime of violence, defined as any offense that has as an element the use, attempted use, or threatened use of physical force against the person of another, statutory rape, sexual abuse of a minor, burglary of a dwelling, murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit; and  a firearms offense;  a child pornography offense; a national security or terrorism offense; a human trafficking offense; or an alien smuggling offense.