Safe Havens

The judgment and sentence can obviously be considered in determining the length of a sentence to confinement that has been ordered by a court, to determine whether a conviction triggers a ground of deportation.  Examples of this would include sentence imposed, as where a noncitizen is charged with having committed an aggravated felony crime of violence, with a sentence imposed of at least one year,[162] and maximum possible sentence.[163]  The question of sentence, however, is distinct from the question of the nature of the offense of conviction.  Therefore, decisions allowing resort to the record of conviction for sentence do not undermine the rule that the record of conviction may be consulted, to determine the nature of the offense, only where the statute of conviction is divisible and it is not otherwise possible to determine which offense within a divisible statute is the offense of conviction.

[162] See, e.g., INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (“term of imprisonment at least one year”).  But see Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such enhancement could not be considered in determining the length of sentence imposed).

[163] See, e.g., INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (“punishable by imprisonment for a term of 5 years or more”).  See also Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant “statutory maximum” is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).