Aggravated Felonies

For an offense to be a crime of violence under 18 U.S.C. § 16(b), it must be a felony, rather than a misdemeanor or other more minor offense.[167]  For this purpose, if the maximum possible custodial sentence is one year or less, the conviction will be considered a misdemeanor under the federal definition of felony.[168]

            A conviction that otherwise qualifies as a crime of violence under 18 U.S.C. § 16(b) will not be an aggravated felony under this subcategory if it is (a) not a felony conviction originally, or is (b) later reduced to a misdemeanor or other lesser level of offense.[169]  This reasoning holds true not only for immigration cases, but also for illegal re-entry sentencing cases.[170]

            A conviction that is a felony only because of the operation of a recidivist sentence enhancement has been held not to be a felony in the Ninth Circuit.[171]  On the other hand, the elevation of a misdemeanor to a felony because of the operation of a conduct-based sentence enhancement, rather than one based on prior convictions, will be considered a felony conviction in the Ninth Circuit.[172]

            An argument has been suggested that the maximum possible sentence for an offense, for purposes of determining whether it is a felony conviction under the federal “more than a year” test, is the maximum legal sentence, either applying applicable sentencing guidelines or the constitutional limitations enunciated by the Supreme Court in Booker.[173]  The Ninth Circuit, however, has rejected this argument, holding that the statutory maximum, not the sentence range under applicable sentencing guidelines, determines whether a given conviction qualifies as a felony for federal sentencing purposes.[174]

[167] 18 U.S.C. § 16(b) specifies that the offense must be “any other offense that is a felony. . . .”  For example, a federal district court has held that a California conviction for possession of a dangerous weapon cannot constitute a crime of violence under 18 U.S.C. § 16(b) because it encompasses misdemeanors.  United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185, 1190 (D. Kansas 2000).

[168] 18 U.S.C. § 3559(a)(5).  See § 3.57, supra.

[169] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).  See also LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[170] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.23 (2005).  But see United States v. Gonzalez-Tamariz, 310 F3d 1168 (9th Cir. 2002) (no error in applying 16-level enhancement to sentence for illegal re-entry because battery causing substantial bodily harm meets federal definition of aggravated felony regardless of state law label as a misdemeanor, and aggravated felony definition plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is at least one year).

[171] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[172] United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).

[173] United States v. Booker, 125 S.Ct. 738 (2005).

[174] United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004).