Offense
Sentencing factor relating to the crime
(1) great violence, callousness
(2) armed or used a weapon
(3) vulnerable victim
(4) leadership
(5) induced minor
(6) interfered w/ judicial process
(7) concurrent sentences
(8) sophistication and planning
(9) taking / damage of high value
(10) large amt of contraband
(11) violated position of trust
hate crime
Aggravated Felony (AF)
See Advice.
Crime Involving Moral Turpitude (CIMT)
See Advice.
Other Removal Grounds
See Advice.
Advice and Comments
DHS may argue these factors transform a non-removable offense into a removable offense.
Best practice is that if D must admit to a factor, negotiate for one relating to their criminal record or sentencing history. See 4.421(a)(7), (b)(2), (b)(3), (b)(4), or (b)(5). If D has no priors, consider negotiating to add an offense that will not hurt immigration status (e.g., PC 415) with sentence to run concurrently, and to admit to (a)(7).
Why? ICE may argue that a factor that describes D’s conduct (such as any in 4.421(a) other than (a)(7)) adds the factor as an element of the offense, which could turn the offense into a COV, CIMT, etc. Immigration advocates can argue against this 1The Ninth Circuit has not yet decided which approach governs what elements are part of the offense that a noncitizen has been ”convicted of.” Quintero-Cisneros v. Sessions, 891 F.3d 1197 (9th Cir. 2018). The BIA has held that ”any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime to which a defendant is subject and that is required by the law in the convicting jurisdiction to be found beyond a reasonable doubt by a jury, if not admitted by the defendant, is to be treated as an element of the underlying offense.” Matter of Khan (BIA 2024) 28 I&N Dec. 850, 853 (citing Matter of Martinez-Zapata (BIA 2007) 24 I&N Dec. 424, 426). In California, a felony offense generally is punishable by a triad – a lower term, a middle term, and an upper term sentence. In 2022, the California Legislature specified that the upper term could be imposed only where circumstances in aggravation were found by a jury or stipulated by a defendant. Pen. Code 1170(b)(1). The California Judicial Council outlined circumstances in aggravation at Cal. Rule of Court 4.421.Immigration defenders can argue that because the factors in aggravation at CRC 4.421 do not increase the penalty, as the upper term is set by statute, the 4.421 factors are not elements under immigration law. See Zepeda v. Superior Court, (2023) 97 Cal.App.5th 65, 71 “[u]nlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term.”). This is supported by the fact that a defendant is not entitled to the same due process rights with aggravating factors as they are with enhancements, including a pleading requirement (where the elements must be included in the charging document), a right to challenge and request dismissal at preliminary hearing or in a 995 motion, or a right to request that a judge dismiss the factor in the interest of justice, pursuant to Penal Code 1385. Id. at 97 (citing In re Varnell (2003) 30 Cal.4th 1132, 1142); see also People v. Pantaleon (2023) 89 Cal.App.5th 932, 939-41 (distinguishing between sentence enhancements and circumstances in aggravation). — but the finding or the admission would have other consequences.
If the suggested factors are rejected or do not apply, negotiate for 4.421(c) but work with a crim-imm expert on the underlying facts, as being vague may not be helpful.
If you must admit a different factor than specified above, speak to a crim-imm expert about how it interacts with your underlying offense.2For example, DHS may assert that CRC 4.421(a)(6) with a one-year sentence transforms a non-removable offense into an “obstruction of justice” aggravated felony. (See discussion of Pugin v. Garland at PC 32); that 4.421(a)(1) and (2) transform a non-removable offense with a one-year sentence into a “crime of violence” aggravated felony; that (a)(5) transforms an offense into a “crime of child abuse”; and that (a)(1), (2), (12) and potentially (3), (5), (8), and (11), transform a non-CIMT into a CIMT. But see Hernandez-Gonzalez v. Holder (9th Cir. 2015) 778 F.3d 793 (gang enhancement did not transform vandalism into CIMT).) Look out for an updated practice advisory on Sentencing.
Criminal defenders should argue that the factors are unconstitutional, as a violation of separation of powers (nondelegation) and due process (void for vagueness).3People v. Mitchell (2022) 83 Cal.App.5th 1051, 1059 (review granted) (holding §1170(b) does not apply retroactively to stipulated plea agreements); see also People v. Sallee (2023) 88 Cal.App.5th 330, 335; cf People v Todd (2023) 88 Cal.App.5th 373, 381 (declining to follow Mitchell, holding 1170(b) does apply retroactively to stipulated agreements; People v. Fox, (2023) 90 Cal. App. 5th 826, 830; but see Zepeda v. Superior Court, (2023) 97 Cal.App.5th 65, 71 (holding that factors (a)(3), (7), (8), (11), and (b)(1) did not violate separation of powers). Look out for an updated practice advisory on Sentencing.