Offense
Sentence enhancement for carrying a firearm during a felony. See Advice for detailed description:
Aggravated Felony (AF)
Subsections (a)(1) and (c) should not transform a non-COV underlying offense into a COV because being armed does not require an intent or attempt to use or threaten violence with the weapon. Defense counsel should assume that subsection (b) will be held a COV, but imm counsel can try to argue otherwise. 1In Keast v. USA, the Ninth Circuit held that neither the enhancement under OR 161.110 for “the use or threatened use of a firearm . . . by a defendant during the commission of the felony” nor the aggravated offense under OR 161.220(1)(a), which requires that the specific felony is “carrying or possessing a dangerous or deadly weapon with intent to use it unlawfully against another” was a COV AF for federal sentencing purposes because neither offense required that the use of the firearm be used against another. 152 F.4th 1039 (9th Cir. 2025) (providing example of someone shooting gun into ground to confirm it is operable on their way to assault someone but being stopped beforehand). Imm counsel should try to analogize CA law to OR law, but note that under CA law, the “use” of a firearm/weapon includes when “the defendant personally deployed the weapon, or acted as if to do so, in furtherance of the crime,” such as displaying the weapon in a menacing way, even against a person other than the primary victim. (People v. Granado (1996) 49 Cal.App.4th 317, 330.)
Section (a)(2) may be an AF as an analogue to 18 USC 922(o)
Subsection (c) may be a drug trafficking AF. See advice related to the underlying H&S Code mentioned in the ROC.
Crime Involving Moral Turpitude (CIMT)
Just carrying the weapon ((a)(1)-(2)) may not be a CIMT but counsel must look at this together with the elements of the underlying offense. 2See Matter of Khan (BIA 2024) 28 I&N Dec. 850 (determining removability by looking at combined elements of underlying offense and sentence enhancement). However, practitioners should investigate a potential Ninth Circuit review of this case.
Presume (c) and (d) are CIMTs, as the underlying enumerated drug offenses are usually CIMTs.
Other Removal Grounds
(a)(1), (c) are not deportable under the firearms ground due to antique firearms rule.3Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (the definition of “firearm” at § 12001(b) (now moved to § 16520(a)) that is used in § 12022(c) is overbroad because it includes antique firearms). Note that the definitions of “assault weapon” and “.50 BMG rifle” expressly exclude antique firearms.
(c) and (d) may also be CS offenses.
Advice and Comments
PC 12022 is a sentence enhancement for carrying a firearm during the attempt or commission of a felony, including:
(a)(1) Principal (includes accomplices) armed with firearm;
(a)(2) Principal (includes accomplices) armed with machine gun, assault weapon, .50 BMG rifle;
(b) Personal use of deadly/ dangerous weapon;
(c) Personally armed w/ a firearm
AF: To avoid a possible AF as a COV, try to plead to simply possessing a weapon (including most firearms) which can take more than a year without being a COV; if needed plead to an additional offense involving actual violence with less than a year’s sentence. See § N.4 Sentence.
SB54: Law enforcement is permitted to cooperate with ICE for 15 years for 12022(a) and indefinitely for 12022(b)-(d). See SB 54 advisory at www.ilrc.org/crimes-summaries.
Mandatory Detention: People not admitted to U.S. are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.