Aggravated Felonies

Where a conviction has been vacated on a ground of legal invalidity, and a federal sentence depends upon that conviction, it should be possible to reopen the federal sentencing proceedings and obtain a new sentence rendered without regard to the conviction that has been vacated.[348]

The same result should apply where a conviction has been vacated on a ground of legal invalidity, and the conviction forms an element of a criminal offense.  The law is less clear on this question, however.[349]

[348] See N. Tooby, Post-Conviction Relief for Immigrants § 6.11 (2004).

[349] Ibid.  See United States v. Padilla, 387 F.3d 1087 (9th Cir. Nov. 2, 2004) (conviction for felon in possession of firearm, under 18 U.S.C. § 922(g)(1), was not invalidated by post-conviction nunc pro tunc state court invalidation of underlying felony conviction; conviction remains valid since defendant was a felon at the time of the federal conviction).