(D)  Potential Sentence Considerations.  This category requires a two-year potential sentence before the offense is considered an aggravated felony.  A safe haven can be created if a disposition can be arranged with a plea of guilty to a failure to appear offense to answer (a) a misdemeanor, or (b) a felony with a potential sentence of less than two years.  See § 7.28, supra.  It may be possible to create a safe haven by later reducing the level of the offense from a felony to a misdemeanor, or from a felony with a maximum of two years or more to a lesser degree of felony with a maximum of less than two years.  Sentence reductions are binding on immigration and federal courts for purposes of assessing the immigration consequences of a conviction.  See § 7.23, supra.

 

            If the plea bargain limited the maximum sentence to a term of less than two years imprisonment, arguably “a sentence of 2 years’ imprisonment or more may [not] be imposed” for this offense, and the failure to appear would not constitute an aggravated felony (assuming the plea bargain was still enforceable after the failure to appear).

 

            Even if the statutory maximum for the offense was two years or more, if the Constitution limited the maximum sentence to a term of less than two years, the offense should not qualify under this aggravated felony category, since there should be an implicit requirement that the potential sentence must be a lawful sentence to qualify.  See § 7.28, supra.

The maximum sentence that “may be imposed” for a conviction is the standard maximum referred to by the United States Supreme Court, in Blakely v. Washington,[559] which held it violates the constitutional right to trial by jury to sentence a defendant on the basis of facts that were not included in the elements of the offense nor admitted factually by the defendant at plea or sentencing.  Blakely applies to immigration cases because the United States Constitution prohibits a sentence greater than allowed by the rule of that case.

 

            The language “an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed,”[560] might have two different meanings:

 

            (a) it might require a conviction of a Failure To Appear offense for which a sentence of two years’ imprisonment or more may be imposed; or

 

            (b) it might require a conviction of an offense relating to a FTA to dispose of an underlying felony charge, for which underlying felony a sentence of two years’ imprisonment or more may be imposed.

 

The FTA offense refers to the violation of a court order to “answer to or dispose of” an (underlying) felony with a possible sentence of two years or more.  Although it mentions two layers of offenses, the clause referring to the punishment is similar in structure to INA § § 101(a)(43)(F), (G), (R) and (S), 8 U.S.C. § § 1101(a)(43)(F), (G), and (S).  It is possible to argue that in (Q), another two-layer definition, Congress expressly referred to the “underlying” offense to address the punishment for that offense and did not use the term “underlying” in (T), but the grammatical structure is still the same.

[559] Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

[560] INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T).

Ninth Circuit

AGGRAVATED FELONY - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 532 F.3d 949 (9th Cir. Jul. 10, 2008) (federal conviction for failure to appear in court, in violation of 18 U.S.C. 3146 is not categorically an aggravated felony as defined by INA 101(a)(43)(Q) or (T); under the modified categorical approach, court was allowed to look to the record of conviction to determine the maximum punishment allowed for the underlying convictions and to determine whether the failure to appear was pursuant to "service of a sentence" or to "answer to or dispose of a charge of a felony.").

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " FAILURE TO APPEAR " CALIFORNIA ELEMENTS
People v. Carroll, 222 Cal.App.4th 1406, 167 Cal.Rptr.3d 60 (3d Dist. Jan. 15, 2014) (affirming conviction of failing to appear in court while on "own recognizance" (OR) release, in violation of Penal Code 1320, where the OR release agreement defendant signed substantially complies with Penal Code 1318).