Updates to criminal defense

DIVISIBLE STATUTE ANALYSIS - STATE LABEL

United States v. Iniguez-Barba, ___ F.3d ___, 485 F.3d 790 (5th Cir. April 25, 2007) (per curiam) ("While we don't look only to the label of the statute at issue to determine what exactly it proscribes, see Fierro-Reyna, 466 F.3d at 326-27, of course we must look to the labels of the statutes to which we compare the statute at issue.")

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - BURGLARY - FLORIDA BURGLARY NOT AN AGGRAVATED FELONY

United States v. Gomez-Guerra, 485 F.3d 301 (5th Cir. April 23, 2007) (Florida conviction for burglary, in violation of Florida Statute 810.02(3) (1995), which forbids not only entry into a structure but also entry into its curtilage, where the charge was in accord, including the words "or the curtilage," did not constitute a crime of violence, pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ( "burglary of a dwelling" under USSG 2L1.2 cmt.

jurisdiction: 
Fifth Circuit

AGGRAVATED FELONY - BURGLARY - DISTINCTION BETWEEN ARMED CAREER CRIMINAL ACT AND ILLEGAL REENTRY SENTENCE ENHANCEMENT

James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (April 18, 2007) (Florida conviction for attempted burglary of a dwelling qualifies as a violent felony for the purposes of the Armed Career Criminal Act, 18 U.S.C 924(2)(B)(ii), under the residual provision in 18 U.S.C. 924(2)(B)(ii), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another.")

jurisdiction: 
US Supreme Ct

AGGRAVATED FELONIES - DRUG TRAFFICKING - POSSESSION - SECOND POSSESSION

For those litigating challenges to drug aggravated felony charges post-Lopez, the NYSDA Immigrant Defense Project has updated its "Practice Advisory: Removal Defense of Immigrants in Drug Possession Cases - The Impact of Lopez v. Gonzales." http://www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.... Also available on the IDP website are copies of amicus briefs addressing post-Lopez issues filed before the Board of Immigration Appeals and before the Second, Fifth, and Eleventh Circuits. http://www.nysda.org/idp/webPages/drugLitigationInit.htm
Thanks to Manny Vargas.

jurisdiction: 
Other

AGGRAVATED FELONY - EFFECTIVE DATE - ILLEGAL REENTRY - SENTENCE - AGGRAVATED FELONY CONVICTIONS TRIGGER SENTENCE ENHANCEMENT REGARDLESS OF DATE OF CONVICTION

United States v. Olmos-Esparza, 484 F.3d 1111 (9th Cir. April 24, 2007) (district court did not err by considering convictions from 1972 and 1976 in calculating illegal reentry sentencing enhancements under USSG 2L1.2), (USSG 2L1.2 contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements); accord, United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006), petition for cert. filed November 22, 2006 (No. 06-7990); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert. denied, 126 S.Ct. 457 (2005).

jurisdiction: 
Ninth Circuit

CRIM DEF - EARLY RELEASE TO DEPORTATION - PRISONER TRANSFER

The general rule is that a noncitizen cannot be removed until the sentence has been served. INA 241(a)(4)(A). The exception to this rule applies to certain nonviolent offenders. INA 241(a)(4)(B).

jurisdiction: 
Other

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT

The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

jurisdiction: 
Other

RELIEF - PAROLE - HUMANITARIAN PAROLE

Humanitarian parole is granted in cases of medical emergencies and the like. These are rarely granted, are generally good for up to a year, and are examined case-by-case by the Secretary of Homeland Security.

jurisdiction: 
Other

Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. May 29, 2007) (petitioner was statutorily ineligible to prove good moral character because he had engaged in alien smuggling).

jurisdiction: 
Ninth Circuit

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