quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
A crime of violence is defined in the federal sentencing guidelines as including the following
felony offenses:
Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling, any offense under federal, state, or local
law that has as an element the use, attempted use, or threatened use of physical force
against the person of another. 33
Note that the USSG “crime of violence” definition used here is not precisely the same as the
definition of “crime of violence” under 18 USC §16, used in determining an aggravated
felony. Note also that the definition of firearms offense includes felony possession of a
firearm and “crime of violence” includes felony statutory rape.
Increase by 12 levels: Drug trafficking and the sentence is less than 13 months.
Increase by 8 levels: Aggravated felony
Increase by 4 levels:
• Any other felony;
• Three or more misdemeanors that are crimes of violence (see definition above) or drug
trafficking offenses.
The following example, based on a real case, shows how a conviction for a “violent
offense” that is not an aggravated felony will affect a client later charged with illegal reentry.
Example: Luis is an undocumented worker who has lived in the U.S. for some years and
has two U.S. citizen children. He has no current means of getting lawful immigration
status. He has been convicted of his first offense, felony assault, and is sentenced to one
month in jail and placed on three years probation. This is not an aggravated felony.
Immigration authorities pick up Luis once his jail term is over, and he is removed to
Mexico based on his unlawful status.
Luis immediately re-enters the United States to return to his family. He is detected by
authorities and charged in federal proceedings with illegal re-entry after removal and a
prior conviction, not of an aggravated felony, but of a separately defined “felony crime of
violence.” While an aggravated felony (e.g., his assault if a one-year sentence had been
imposed) would only have rated a sentence increase of 8 levels, under the felony “crime
of violence” category he receives an increase of 16 levels. Luis is sentenced to forty-one
months of federal prison for the illegal re-entry. 34
33 USSG § 2L1.2, comment (n.1)(B)(iii) (2004).
34 See discussion of similar facts, U.S. v. Pimentel-Flores, 339 F.3d 959 (9 th Cir. 2003).
N-26 Immigrant Legal Resource Center