As discussed in Chapter One, Section C4, a conviction for aggravated felony has dire results for any immigrant. Some convictions are considered aggravated felonies only if the sentence imposed includes a year or more of imprisonment and a sentence of 364 days or less will prevent them from being categorized as aggravated felonies.⁹¹ In the case of these crimes, defense counsel has great opportunity to argue for a sentence to protect a client's immigration rights by pushing for a sentence of less than 365 days.only if a sentence to imprisonment of one year is imposed:

• Crime of violence, defined under 18 USC § 16 (see Chapter Nine: Avoiding Convictions That Are Crimes of Violence);

• Theft (including receipt of stolen property);

• Burglary;

• Bribery of a witness;

• Commercial bribery;

• Counterfeiting;

• Forgery; ⁹⁰

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).91 See INA § 101(a)(43); 8 USC § 1101(a)(43): §§ (F), (G), (P), (R), and (S).

• Trafficking in vehicles which have had their VIN numbers altered;

• Obstruction of justice;

• Perjury, subornation of perjury;

• 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: 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.

Practice Tip

If the offense is the type that will be made an aggravated felony by sentence the key is to avoid any one count from being punished by a one-year sentence. If needed, counsel can offer for his client to spend more time in jail in exchange for the shorter over-all sentence imposed in negotiations. Other options include

• 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 sentence, that will result in the same amount of time actually incarcerated as under the originally proposed sentence;

• Rather than take a probation violation that adds time to the sentence for the original conviction, ask for a new conviction and take the time on the new count; or

• 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. (Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).) 

State’s classification of the offense as a misdemeanor, and the fact that the offense was not punishable by more than a year (the traditional definition of felony) did not prevent the court from making this determination.

⁹⁰ 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).91 See INA § 101(a)(43); 8 USC § 1101(a)(43): §§ (F), (G), (P), (R), and (S).

⁹¹ See INA § 101(a)(43); 8 USC § 1101(a)(43): §§ (F), (G), (P), (R), and (S).

⁹² United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. 2003).