Sentence enhancement for carrying a firearm during a felony. See Advice for detailed description:
Aggravated Felony (AF)
(a)(1), (c) should not be held a COV unless underlying felony is, but no there is no case on point.1For example, in Medina-Lara, 771 F.3d 1106 (9th Cir. 2014), Mr. Medina-Lara was convicted of H&S C § 11351, possession with intent to sell, with an enhancement for carrying a gun during the felony, under Pen C § 12022(c). The offense was held not to be a drug trafficking aggravated felony for deportation purposes because the record did not prove a federally defined controlled substance. The Ninth Circuit did not discuss whether the offense was a crime of violence, because apparently the government never charged this. But arguably since possession for sale is not a crime of violence, doing so while having a weapon available but not using it is not.
Assume that (b), with use of a firearm, is a COV.
(a)(2) may be an AF as an analogue to 18 USC 922(o)
Crime Involving Moral Turpitude (CIMT)
Use of weapon likely to be held CIMT; armed w/ weapon might not be.
Other Removal Grounds
(a)(1), (c) are not deportable under the firearms ground due to antique firearms rule.2Medina-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.
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.