Immigrant Legal Resource Center, www.ilrc.org § N.4 Sentence Solutions
January 2013
less than a year on each of several counts, to be served consecutively, does not result in a
single conviction with more than a one-year sentence imposed.
Time imposed pursuant to a recidivist sentence enhancement (e.g., petty with a prior) is part
of the total sentence imposed.
2
Time that is imposed on the original offense after a probation or parole violation will be
added to the original time for that count.
3
Example: The judge suspends imposition of sentence, 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 10 months is added to the sentence, she will have a total
“sentence imposed” of 14 months. If this is the kind of offense that will be made an
aggravated felony by a one-year sentence imposed, she would do better to take a new
conviction instead of the P.V. and have the time imposed for that.
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.
4
Five ways 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 negotiate for significant jail time or even state prison
time. It is important to remember that a state prison commitment will not automatically make
the conviction an aggravated felony. If immigration concerns are important, counsel might:
1. Bargain for 364 days on a single count/conviction;
2. Plead to two or more counts, with less than a one year sentence imposed for each, to be
served consecutively;
3. Plead to an additional or substitute offense that does not become an aggravated felony
due to sentence, and take the jail or even state prison time on that.
Example: Felipe is a longtime permanent resident who is charged with multiple violent
crimes. There are also allegations that a knife was used in the commission of the
crimes. The prosecution is demanding that Felipe plead guilty to a strike and that he be
2
The opposite rule was in force, until the Supreme Court overturned Ninth Circuit precedent. U.S. v. Rodriquez,
128 S. Ct. 1783 (2008), overruling in part United States v. Corona-Sanchez, 291 F.3d 1201 (9
th
Cir. 2002)(en banc).
3
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).
4
Matter of Song, 23 I&N Dec. 173 (BIA 2001).