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