Updates to criminal defense

CONVICTION - EFFECT OF STATE LAW ON FEDERAL IMMIGRATION DECISION - IMMIGRATION CONSEQUENCES OF CONVICTIONS ARE QUESTIONS OF FEDERAL, NOT STATE, LAW

United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (federal sentence effect of state conviction is a question of federal, not state law, holding Full Faith and Credit Act, 28 U.S.C. 1738, did not require federal sentencing court to follow state law on whether it constituted a conviction to enhance a federal sentence); see United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

jurisdiction: 
Fifth Circuit

CONVICTION - FINALITY - FULL FAITH AND CREDIT ACT NOT VIOLATED BY SENTENCING COURT'S CONCLUSION STATE DEFERRED ADJUDICATION PROBATION DISPOSITION CONSTITUTES CONVICTION FOR PURPOSES OF ENHANCING FEDERAL SENTENCE UNDER 18

U.S.C. 841(b)(1)(A)
United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (Texas guilty plea resulting in imposition of deferred adjudication probation constituted a "prior conviction" for purposes of sentence enhancement under 18 U.S.C. 841(b)(1)(A), rejecting claim that it did not constitute a final conviction under Texas law and the Full Faith and Credit Act; 28 U.S.C.

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - IMMIGRATION V. SENTENCING CONTEXT

United States v. Sandoval-Sandoval, ___ F.3d ___ (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir.

jurisdiction: 
Ninth Circuit

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT - DISTRICT COURT PROPERLY RELIED ON CALIFORNIA ABSTRACT OF JUDGMENT IN DETERMINING SENTENCE IMPOSED SINCE DOCUMENT UNEQUVOCALLY CONTAINED THE NECESSARY INFORMATION

United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir.

jurisdiction: 
US Supreme Ct

GOOD MORAL CHARACTER - REGULATIONS

United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set fire to own vehicle with intent to defraud insurance company).

jurisdiction: 
0

GOOD MORAL CHARACTER - REGULATIONS

United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f); nor is the regulation unconstitutionally vague, as applied to respondent who set fire to own vehicle with intent to defraud insurance company).

jurisdiction: 
Ninth Circuit

GOOD MORAL CHARACTER - FALSE TESTIMONY - MATERIALITY REQUIREMENT

Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. May 25, 2007) ("Gonzalez's misrepresentation [putting attorney's address in a different state as his own on an immigration application] is immaterial because his address had no bearing on his receipt of immigration benefits.").

jurisdiction: 
Fifth Circuit

GOOD MORAL CHARACTER - FALSE TESTIMONY - SUBJECTIVE INTENT TO OBTAIN BENEFITS

Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. May 25, 2007) ("A person does not have good moral character if he "has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. 1101(f)(6). "[T]estimony is limited to oral statements made under oath . . . [and] with the subjective intent of obtaining immigration benefits." Kungys v. United
States, 485 U.S. 759, 780, 108 S. Ct. 1537, 1551 (1988); see also
Beltran-Resendez v. INS, 207 F.3d 284, 287 (5th Cir.

jurisdiction: 
Fifth Circuit

OVERVIEW - IJ - RIGHT TO COUNSEL

Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. Feb. 16, 2007) ("When an immigrant has engaged counsel and the IJ is aware of the representation, if counsel fails to appear, the IJ must take reasonable steps to ensure that the immigrants statutory right to counsel is honored. Here, denying the request for a continuance and conducting the merits hearing without taking reasonable steps to permit counsel to participate, denied Hernandez-Gil his statutory right to counsel.")

jurisdiction: 
Ninth Circuit

OVERVIEW - FEDERAL APPEAL - PETITION FOR REVIEW

Randhawa v. Gonzales, 474 F.3d 918 (6th Cir. Jan. 30, 2007) (petition for review of BIA decision does not toll the time limit for filing a motion for reconsideration with the BIA).
http://caselaw.lp.findlaw.com/data2/circs/6th/053694p.pdf

jurisdiction: 
Sixth Circuit

Archives

Sep 2010

Categories

Tags