For further discussion see Defending Immigrants in the Ninth Circuit, Chapter 5, www.ilrc.org/criminal.php
A Definition of Sentence, Getting to 364 Days B. The Effect of Sentence Enhancements
Big Picture. Some, but not all offenses become aggravated felonies only if a sentence of a year or more is imposed. The definition of sentence includes a suspended sentence, but there are several creative defense strategies to avoid getting to the one-year point.
A. Definition of Sentence; Aggravated Felony and the 364 Days
Offenses that are aggravated felonies based on a one-year sentence. The following offenses are aggravated felonies if and only if a sentence to imprisonment of one year was imposed. Obtaining a sentence of 364 days or less will prevent them from being aggravated felonies.30
o Crime of violence, defined under 18 USC § 16 o Theft (including receipt of stolen property) o Burglary
o Bribery of a witness o Commercial bribery o Counterfeiting o Forgery
o Trafficking in vehicles which have had their VIN numbers altered o Obstruction of justice
o Perjury, subornation of perjury
o Falsifying documents or trafficking in false documents (with an exception for a first offense for which the alien affirmatively shows that the offense was committed for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent)
Note that many other offenses are aggravated felonies regardless of sentence imposed, such as offenses relating to drug trafficking, firearms, sexual abuse of a minor, or rape. For example, conviction of possession for sale is an aggravated felony regardless of sentence. Obtaining a sentence of 364 days in these cases will not prevent the
conviction from being an aggravated felony.
Definition of “sentence imposed” for immigration purposes. The immigration statute defines sentence imposed as the “period of incarceration or confinement ordered
30 See 8 USC § 1101(a)(43), subsections (F), (G), (P), (R), and (S).
by a court of law, regardless of suspension of the imposition or execution of that imprisonment in whole or in part.”TP31PT
• This language refers to the sentence actually imposed, not to potential sentence.
• It does not include the period of probation or parole.
• It includes the entire sentence imposed even if all or part of the execution of the sentence has been suspended. Where imposition of suspension is suspended, it includes any period of jail time ordered by a judge as a condition of probation.
• Time imposed by recidivist sentence enhancement will be counted as part of the sentence imposed. See Part B below.
• Additional time imposed on the original conviction based on a probation or parole violation is included within the “sentence imposed.”TP32PT
Example: The judge suspends imposition of sentence on a Class 6 felony, orders three years probation, and requires jail time of four months as a condition of probation. The defendant is released from jail after three months with time off for good behavior. For immigration purposes the “sentence imposed” was four months.
However, if this defendant then violates probation and an additional 8 months is added to the sentence, she will have a total “sentence imposed” of 12 months. If this is the kind of offense that will be made an aggravated felony by a one-year sentence imposed, she should bargain so that the aggregate sentence on the original offense is 364 days or less, rather than twelve months.
How to get to 364 days or less. Often counsel can avoid having an offense classed as an aggravated felony by creative plea bargaining. The key is to avoid any one count from being punished by a one-year sentence, if the offense is the type that will be made an aggravated felony by sentence. If needed, counsel can still require significant jail time for the defendant. If immigration concerns are important, counsel might:
• bargain for 364 days on a single conviction;
• plead to two or more counts, with less than a one year sentence imposed for each, to be served consecutively;
• plead to an additional or substitute offense that does not become an aggravated felony due to sentence, and take the jail time on that;
• waive credit for time already served or prospective “good time” credits and persuade the judge to take this into consideration in imposing a shorter official
TP
31
PT Definition of “term of imprisonment” at 8 USC § 1101(a)(48)(B).
TP
32
PT See, e.g., United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (a defendant sentenced to 365 days probation who then violated the terms of his probation and was sentenced to two years imprisonment had been sentenced to more than one year for purposes of the definition of an aggravated felony).
sentence, that will result in the same amount of time actually incarcerated as under the originally proposed sentence;
• bargain at a probation violation to obtain a total sentence imposed of 364 days or less, even if this means taking additional time on a new conviction – as long as the new conviction does not become an aggravated felony.
Vacating a sentence nunc pro tunc and imposing a revised sentence of less than 365 days will prevent the conviction from being considered an aggravated felony.TP33PT
The petty offense exception. The above definition of “sentence imposed” also applies to persons attempting to qualify for the petty offense exception to the moral turpitude ground of inadmissibility, which holds that a person who has committed only one crime involving moral turpitude is not inadmissible if the offense has a maximum possible one-year sentence and a sentence imposed of six months or less.TP34PT See Note
“Crime Involving Moral Turpitude.”
B. UThe Effect of Recidivist and Other Sentence EnhancementsU
The Supreme Court recently overturned Ninth Circuit precedent to hold that a sentencing enhancement imposed as a result of a recidivist offense shall count towards the length of sentence imposed. U.S. v. Rodriguez, 128 S. Ct. 1783 (2008). In Arizona this issue may arise with Shoplifting or Aggravated Domestic Violence pursuant to A.R.S. §§ 13-1805 and 13-3601.02. If for example, someone is convicted of an Aggravated Domestic Violence because of two prior misdemeanor domestic violence offenses and is sentenced to one year or more, this could arguably be found an aggravated felony for conviction of a crime of violence with a sentence of one year or more.
While the actual sentence imposed is usually determinative for removability, the potential sentence may control for certain grounds.TP35PT For instance, 8 USC §
1227(a)(2)(A)(i) provides that a person is deportable for conviction of a crime involving moral turpitude committed within five years after the date of admission for which a sentence of one year or longer may be imposed. An Arizona class 6 undesignated felony that has been deemed a misdemeanor after completion of probation would not meet this ground of deportability since the maximum sentence is six months. INS v. LaFarga, 170 F.3d 1213 (9PthP Cir. 1999). However, immigration authorities will find that a class 6 undesignated in which the defendant has not yet completed probation would have a potential sentence of one and a half years and would therefore trigger removability.
As described above, the completion of probation and designation of the offense as a misdemeanor may have immigration benefits. However, it is important to remember that this will only apply when the length of the actual or potential sentence is an element of the ground of removability. For instance, the controlled substance ground of
removability is not dependent on the length of the sentence; therefore, a class 6
TP
33
PT Matter of Song, 23 I & N Dec. 173 (BIA 2001).
TP
34
PT See 8 USC § 1182(a)(2)(A)(ii)(II).
TP
35
PT See 8 USC § 1182(a)(2)(A)(ii)(II); 8 USC § 1227(a)(2)(A)(i).
undesignated conviction for possession of paraphernalia under ARS § 13-3415 will trigger removability regardless of whether it is ultmately designated a felony or a misdemeanor.