Safe Havens

A plea to possession of an unspecified dangerous weapon[147] constitutes a safe haven.  Since it is mere possession, rather than use, and has no element of intent to harm another, it does not constitute a crime of violence or a crime of moral turpitude.  See § 8.54, supra.  Since the weapon is unspecified, it does not constitute a firearms conviction.  See § 7.172, supra.  This is predicated on the assumption that the entire record of conviction does not state anywhere that the weapon the defendant possessed was a firearm.  The sentence is irrelevant to these grounds of deportation, so the defendant could receive a lengthy sentence without triggering deportation.

This disposition does not constitute a “crime of violence” and therefore does not constitute an aggravated felony under that category.[148]  The charge to which a plea is entered can specify the type of weapon so long as it is not a firearm or destructive device.  In the alternative, since many such statutes are divisible with respect to the firearms element, prohibiting some weapons that are firearms and some that are not, the defendant could plead to a violation of the statute as written, in the disjunctive (e.g., “possession of a dirk, dagger, or firearm”), and the resulting conviction would not trigger deportation since the record of conviction does not unambiguously identify the weapon possessed as a firearm, and the government must prove by clear and convincing evidence that the conviction falls within the deportable portion of the divisible statute. 

To avoid deportation on account of a conviction of this type of offense, it would be necessary to alter the language of the charge to which a plea is entered to delete identification of the dangerous weapon possessed, so that the charge no longer specified that a firearm was involved.  This means the charging paper could not specify firearms, the guilty plea and any factual admissions made by the defendant during the guilty plea proceedings could not specify firearms, and the judgment could not specify firearms.  If a forfeiture or destruction order is entered by the court, it would be necessary that it specify destruction of the weapons seized, rather than the firearms seized.  It would not pose a problem if the probation conditions prohibited possession of firearms, since many probation conditions have this provision even where the offense had nothing to do with firearms. 

Second-best would be to enter a plea to possession of an unspecified weapon, but to make it clear in the plea that the defendant is not entering a plea to possession of firearms, as charged in the charging paper; s/he is entering a plea only to possession of a dangerous weapon as defined in the statute.  It would be best if the prosecutor does not say on the record that the weapon was a firearm.  Even if s/he does, defense counsel can make it clear the defendant is not conceding that to be true.  It might be better to waive a probation report.  If a probation report states the weapon was a firearm, defense counsel can make clear on the record generally speaking that the defense is not conceding that the facts recited in the probation report, which were based on the offense reports, are accurate, but the defense does not feel it necessary to take the time to clarify exactly in which respects the defendant’s version differs from the police reports since the details will not affect the sentence.

The same reasoning applies to a conviction of carrying an unspecified weapon, and should also apply to a conviction of brandishing an unspecified weapon.

[147] E.g., California Penal Code § 12020(a)(1).

[148] United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003) (California conviction of possession of a dangerous weapon, in violation of Penal Code § 12020(a), is not a “crime of violence,” and therefore is not an aggravated felony offense under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).