RCW 9.94A.589, on consecutive or concurrent sentences, sets forth several rules regarding such sentences. For immigration purposes, when concurrent sentences are imposed, the total sentence is limited to the period of the greatest of the sentences actually imposed, i.e., concurrent sentences are not added together. ¹⁰²

The BIA has held that the term of imprisonment for immigration purposes is equal to the length of the longest concurrently imposed sentence.¹⁰³

Concurrent sentences can be an effective way to resolve a criminal case and avoid an aggravated felony designation where the one-year sentence is an issue. For example, pleading a noncitizen defendant to two counts of assault in the second degree with a sentence of 9 months each to run consecutively will avoid either count being an aggravated felony.

2. Indeterminate Sentence

Where a noncitizen was sentenced under an indeterminate sentencing scheme, as was formerly in effect in Washington and as may apply to offenses committed prior to July 1, 1984, the sentence for immigration purposes is the maximum possible sentence which the noncitizen could have served. ¹⁰⁴

3. Sentence Enhancements

The Ninth Circuit held that where a sentence enhancement is imposed for recidivist behavior, only the maximum possible sentence for the original un-enhanced offense will count in calculating whether a one-year sentence has actually been imposed, to create an aggravated felony. ¹⁰⁵

This rule also has been applied to determine whether a drug offense is a “felony” for purposes of the aggravated felony drug trafficking ground.¹⁰⁶

Whether the “maximum possible sentence” for this analysis is that under the statutory standard range calculation or the statutory maximum is not clear. The Supreme Court’s decision in Blakely v. Washington ¹⁰⁷ strengthens the argument that it should be the standard range. (However, whether Blakely is even applicable to immigration proceedings has not yet been determined.) Washington State has numerous other types of sentence enhancement statutes such as drug-related enhancements,¹⁰⁸ deadly weapon enhancements,¹⁰⁹ vehicular homicide enhancements¹¹⁰ and sexual motivation enhancements.¹¹¹ While the Corona-Sanchez Court specifically addressed recidivist sentence enhancements, immigration counsel should use this as a starting point to argue that this rule applies to other types of sentence enhancements.¹¹²

The RCW 9.94A.030(9) provides community supervision as a sentencing alternative to eligible offenders facing incarceration. Generally, community supervision provides that an offender may be released to live in the community subject to crime related prohibitions and other sentence conditions. “For purposes of the interstate compact for out-of-state supervision of parolees and probationers … community supervision is the functional equivalent of probation and should be considered the same as probation by other states.” Community supervision appears to be comprised of two sub-categories: community custody¹¹³ and post-release supervision. ¹¹⁴ However, as a practical matter, in virtually all Washington criminal cases only community custody is imposed. Community custody is not an additional period of incarceration or confinement ordered by the court. Rather, in most cases it should be construed as a condition of sentence akin to probation. Thus, since probation is not a sentence for immigration purposes, community custody should not be a sentence either.¹¹⁵ Community custody that is served in lieu of earned release time, as provided for under RCW9.94A.728 will not change the amount of time imposed under the original sentence.

5. First Time Offender Waiver (FTOW)

There is a statutory alternative to the standard sentence range for certain first-time offenders under RCW 9.94A.650.¹¹⁶ The statute allows the courts to impose more lenient treatment and conditions once the offender has plead guilty. Any period of incarceration imposed pursuant to the FTOW will constitute a sentence for immigration purposes. FTOW sentences might conceivably be useful to avoid removal for simple possession offenses and lesser drug crimes. See Chapter Six: Drug Offenses for more details, and discussion, infra, at p.56.

6. Drug Offender Sentencing Alternative (DOSA)

Certain offenders convicted of a Violation of the Uniformed Controlled Substances Act (VUCSA) are eligible for Drug Offender Senentencing Alternative or DOSA sentencing.¹¹⁷ Offenders who are or become subject to a final order of deportation (removal) are ineligible for DOSA. ¹¹⁸ Thanks to a bill passed during the 2005 legislative session, DOSA now includes a prison-based alternative and a residential chemical dependency treatment-based alternative.¹¹⁹ Should the court elect to impose the DOSA prison-based alternative, it must impose a sentence of one-half of the midpoint of the offender’s standard range, to be served in a prison facility. The court must impose the remainder of the midpoint of the standard range as a term of community custody with treatment.¹²⁰ The treatment-based alternative includes a term of community custody equal to one half of the midpoint of the standard sentence range or two years, whichever is greater, with requirements to enter into treatment including a period of residential treatment.¹²¹ If the offender violates the terms of the DOSA under the prison-based alternative or becomes ineligible for the DOSA after the court has granted it, the offender will serve the portion of community custody as sentence to confinement.¹²² Under either type of DOSA the offender can be returned to court for evaluation, and be sentenced to a term of confinement within the standard range of her current offense, as a sanction for violations.¹²³ If a non-citizen sentenced under the prison based alternative is found “By the US Attorney General” to be subject to a deportation order, she has a right to a hearing, and if she is found to be “subject to a valid deportation order” the offender “may” be terminated from the program and reclassified to serve the remainder of the original sentence.¹²⁴ Under this scheme, community custody is likely to be determined to be a suspended sentence for immigration purposes. However, most drug-related provisions under the immigration laws have no sentence requirements. And, as a practical matter, noncitizens given DOSAs who serve their time at DOC are not likely to get the benefit of the DOSA, but rather will be issued orders of removal or deportation and required to serve the entirety of their sentence.

SSOSA is a special sentencing alternative that allows for community treatment of certain sex offenders. Unlike DOSA, SSOSA has no immigration related prohibitions to participation. If a court determines that an offender is eligible for SSOSA, ¹²⁵ the¹²⁶ In SSOSA cases, the sentence for immigration purposes will be the amount of time originally imposed by the court, regardless of any time suspended pursuant to the SSOSA.

WEC is an alternative to incarceration for certain non-drug, non-violent, non-sex offenders who have received a sentence between 12 months and 36 months. This alternative allows these offenders to serve their sentence in a WEC instead of prison. Noncitizens subject to an immigration detainer or final order of deportation/removal are ineligible for WEC. Participants who fail to complete the program are required to serve the remaining portion of their sentence in DOC custody. A referral by the sentencing court to a WEC does not alter the underlying sentence imposed by the court, which is what counts for immigration purposes.

Where a court reduces a sentence under any legal procedure, or appropriate authorities commute the sentence, only the reduced sentence is the sentence imposed, even if the noncitizen has actually served a longer time period. ¹²⁷ It is¹²⁸ However, the length¹²⁹ of sentence imposed is not changed when a non-citizen wins early release for good behavior and does not serve the full term: the length of term imposed by sentencing authorities still constitutes the “sentence imposed".

10. Juvenile Sentences

Sentencing after adjudication in juvenile proceedings is not a sentence imposed as a result of a conviction and hence should have no immigration penalties. Noncitizens tried as adults and committed to the Department of Corrections are considered convicted and sentenced for immigration purposes.

Civil commitment pursuant to RCW 71.05, 71.06, 71.34, 72.68, or 10.77 following criminal proceedings adjudication is probably not a sentence to confinement or incarceration. RCW 10.77 sets for procedures for civil commitments where the defendant is believed to be incompetent. The statutory scheme is intended to provide rehabilitative, non-punitive treatment to various types of offenders with mental health issues. The court orders the proceedings stayed and the defendant is turned over to the custody of the Department of Heath and Human Services. No sentence is imposed. This is the case even where the jury returns a special verdict of Not Guilty by Reason of Insanity. ¹³⁰

12. Conditional Release for Deportation of Noncitizens

RCW 9.94a.685 provides for the conditional release of a non-citizen offender to the INS for deportation in lieu of incarceration with the Washington Department of Corrections (DOC). Prior to the actual expiration of the offender's term of confinement with the DOC, he may be "released" and transferred into the custody of immigration authorities for the specific purpose of deportation/removal. This bill was introduced and passed by the legislature in 1993 at the request of the Department of Corrections. Certain offenders are ineligible for the conditional release. These include offenders "serving a sentence for a violent offense or sex offense, as defined in RCW 9.94A.0³⁰, or any other offense that is a crime against a person,” and offenders who were already once released pursuant to this provision and then illegally re-entered the U.S. The offender's obligations to the Department of Corrections continue while on conditional release. Such an offender must still satisfy any legal financial obligations ordered at sentencing, including restitution. The release continues until the expiration of the statutory maximum sentence provided for the underlying conviction. The Department issues an arrest warrant that remains in effect until the end of the release. Any unserved portion of the term of confinement is tolled as of the release to immigration authorities, and if the offender is arrested while on release, this unserved portion of the term of confinement will be reinstated.

¹⁰³ Matter of Aldabesheh, 22 I. & N. Dec. 983 (BIA 1999).

¹⁰⁴ Matter of D-

¹⁰⁵ U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc).

¹⁰⁶ U.S. v. Arellano-Torres, 303 F.3d 1173 (9th Cir. 2002); U.S. v. Ballesteros-Ruiz, 319 F.3 1101, 1103 (9thCir. 2003); Corona-Sanchez, supra n. 89, 105, (implicitly overruling holdings in U.S. v. Garcia-Olmedo,112 F.3d 399 (9th Cir. 1997) and U.S. v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998) that a secondfederal simple possession conviction is a felony for this purpose based on the federal recidivist sentence enhancement).

¹⁰⁷ Blakely v. Washington, 124 S.Ct. 2531 (2004).

¹⁰⁸ RCW 9.94A.510.

¹⁰⁹ RCW 9.94A.530(1); RCW 9.94A.533(3).

¹¹⁰ RCW 46.61.520(2).

¹¹¹ RCW 9.94A.835.

¹¹² But see discussion of United States v. Moreno-Hernandez, 2005 U.S. App. LEXIS 13316; infra n. 299,p. 105, limiting scope of Corona-Sanchez for some non-recidivist enhancements.

¹¹³ RCW 9.94A.030(5).

¹¹⁴ Post-release supervision is defined broadly as “community placement that is not community custody.”RCW 9.94A.030(33).

¹¹⁵ There is some risk that community custody imposed under RCW 9.94A.660 (DOSA) and RCW9.94A.670 (SSOSA) could arguably constitute a suspended execution of sentence, in which case it would constitute a sentence for immigration purposes. Note that sentences are irrelevant for immigration purposesfor cases involving drugs and offenses considered to be “sexual abuse of a minor.”

¹¹⁶ Washington Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual 2003 at I-28.

¹¹⁷ RCW 9.94A.660(1)(c),(e), and (f).(2005). DOSA was modified by the Legislature, effective 10-1-05.

¹¹⁸ RCW 9.94A.660(1)(d): “[t]he offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence.” If there is no detainer in place, then “subject to a[n]… order” should be argued to refer only to noncitizens who have fully-adjudicated, final orders of removal.

¹¹⁹ RCW 9.94A.660(5) and (6) (2005).

¹²⁰ RCW 9A.94A.660(5)(a) and (b) (2005) See also Washington Sentencing Guidelines Commission, Adult2003 at I-28.

¹²¹ RCW 9.94A.660(6)(a)(2005).

¹²² CW 9.94A.660(5)(b). Also: “[i]f the department finds that the offender is subject to a valid deportation order, the department may administratively terminate the offender from the program and reclassify the

¹²³ RCW 9.94A.660(8) (2005).

¹²⁴ RCW 9.94A.660(9)(2005). Presumably under the residential treatment-based alternative an offender is not subject to this possibility, once he has been sentenced, since there is no parallel provision. The conditional phrasing—“may”—of such administrative termination implies that it is not mandatory. This seems to potentially conflict with 9.94A.660(d), which makes a person eligible for DOSA only if he “does not become subject to a deportation order during the period of the sentence.”

¹²⁵ SSOSA eligibility requirements and procedures are governed by RCW 9.94A.670.

¹²⁶ Washington Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual 2003 at I-30.

¹²⁷ Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N.Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation byMatter of Song, 23 I. & N. Dec. 173 (BIA 2001).

¹²⁸ Established law treats a modified sentence as the actual sentence for immigration law purposes. Mattern. 127; Matter of Martin, supra n. 127.

¹²⁹ Burr v. Edgar, 292 F.2d 593 (9th Cir. 1961).

¹³⁰ RCW 10.77.040 and RCW 10.77.120.