(D)

Effect of Vacating Prior Conviction.  If a noncitizen is charged with removal on account of a conviction of a crime of moral turpitude for which a sentence of one year or more may be imposed, and that maximum sentence applies to the current offense because of the existence of a prior conviction which has been vacated, the noncitizen is no longer removable. The deportation ground is written in the present tense ("sentence … may be imposed"),[89] and the condition precedent to the higher maximum sentence no longer exists.

[89] INA § 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II) (emphasis supplied). 

Ninth Circuit

CRIMES OF MORAL TURPITUDE " DEPORTATION GROUND " SENTENCE
Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. 2008) (the plain language of the phrase, maximum penalty possible in INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II), refers to the statutory maximum, not the guideline range, so noncitizen was ineligible for the petty offense exception to inadmissibility for one CMT conviction, under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. (a)(2)(A)(ii)(II)). Note: This result is different under state sentencing statutes that prohibit a sentence in excess of one year for a given offense, criminal history, or other circumstances. United States v. Simmons, __ F.3d __ (4th Cir. Aug. 17, 2011), overfuling United States v. Tlarp, 406 F.3d 242 (4th Cir. 2005).