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Limitations On New BIA Holding Sentence Enhancements Are Included In Record Of Conviction To Determine The Nature Of The Conviction

by Norton Tooby and Joseph Justin Rollin

In Matter of Martinez-Zapata, 24 I. & N. Dec. 424 (BIA 2007), the BIA held certain sentence enhancements to be equivalent to elements of the offense for purposes of determining the nature of the offense for immigration purposes. This rule, however, does not apply where a sentence enhancement has been found true by a mere preponderance of the evidence, whether it was found by a court or jury. This is because Apprendi v. New Jersey, 530 U.S. 466 (2000), on which Martinez-Zapata is based, held that a sentencing court's finding by a preponderance of the evidence of the truth of a sentence enhancement that increased maximum penalty of offense was unconstitutional in violation of the jury trial guarantee of the United States Constitution because it constituted an element of the offense under that provision.

This offers a number of favorable arguments counsel can use to argue that a given sentence enhancement does not constitute an element of the offense for purposes of determining the nature of the offense under immigration law. The BIA itself recognized important limitations on its decision.

Importantly, we point out that Apprendi and its progeny do not encompass all sentence enhancements; the Apprendi analysis will not result in all sentence enhancements being the equivalent of "elements" of an offense. Rather, those post-Apprendi enhancements that may still permissibly be found by a preponderance of the evidence by a sentencing judge, including those under the United States Sentencing Guidelines and many State sentencing schemes, will not be the equivalent of an "element" of an offense. See, e.g., Cunningham v. California, 127 S. Ct. 856 (2007); Blakely v. Washington, supra; Ring v. Arizona, 536 U.S. 584 (2002). It is crucial that an examination of the specific statutory sentencing scheme be conducted in order to make the determination. To equate to an element it must be shown that, under the law of the convicting jurisdiction, a sentencing factor had to be proved to a jury beyond a reasonable doubt if it was not admitted by the defendant.

Martinez-Zapata, supra, at 430. In particular, a number of limitations and arguments emerge from this decision:

(1) Martinez-Zapata cannot retroactively convert a sentence enhancement found by a mere preponderance into an element of the offense. Many sentence enhancements imposed prior to June 26, 2000, the date on which Apprendi was decided, were imposed after a sentencing judge found the sentence enhancement true by a preponderance of the evidence. These sentence enhancements cannot constitute elements of the offense under Martinez-Zapata, because it was not in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. Martinez-Zapata expressly states that its rule (like its rationale) applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007). "The holding in Matter of Rodriguez-Cortes also continues to apply in pre-Apprendi sentencing determinations." Matter of Martinez-Zapata, supra, at 429 (BIA 2007).

(2) Even after Apprendi, it took some time before courts implemented that decision, so it is important to verify that the sentence enhancement in the case under consideration was in fact admitted by the defendant or found true beyond a reasonable doubt by a jury. If not, the sentence enhancement does not in fact constitute an element of the offense. Even today, because of the ongoing confusion in this area, many courts are not in fact implementing Apprendi correctly. The courts' learning process is sometimes slow.

(3) Be alert for instances in which the sentence enhancement was found by a preponderance, rather than beyond a reasonable doubt. In jury cases, check the jury instructions relating to the sentence enhancement to verify the burden of proof was in fact beyond a reasonable doubt. The BIA has cautioned that the inquiry in these cases is very much dependent on the exact mechanics of the statutes in the jurisdiction of conviction:

However, not all facts bearing on sentencing are required to be found beyond a reasonable doubt as a result of Apprendi and Blakely. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court made determinations under the United States Sentencing Guidelines advisory, thereby allowing such findings to continue to be made solely by Federal judges under a preponderance of the evidence standard. Further, the States have responded in various ways to Apprendi and Blakely, such that a careful understanding of specific State law is needed to determine whether a particular sentencing factor, if not admitted during the criminal proceedings, would be required to be found beyond a reasonable doubt by a jury.

Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428-429 (BIA 2007) [footnote omitted].

(4) Following Apprendi, Martinez-Zapata applies only to sentence enhancements that increase the maximum possible statutory penalty for the offense. Therefore, sentence enhancements are not equivalent to elements of the offense, for immigration purposes, if they do not increase the maximum statutory penalty for the conviction, but merely increase the actual sentence ordered for the conviction within a fixed statutory maximum, as is the case under the United States Sentencing Guidelines and similar state sentence frameworks.

(5) Martinez-Zapata does not apply where a sentence enhancement does not increase the statutory maximum for the offense, but merely the statutory minimum. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.4 (BIA 2007) ("Compare section 481.134(c) of the Texas Health and Safety Code, which is not subject to Apprendi in accordance with Harris v. United States, 536 U.S. 545 (2002), because it merely increases the statutory minimum sentence but does not exceed the statutory maximum sentence. See Williams v. State, 127 S.W.3d 442, 445 (Tex. App. 2004) (finding that section 481.134(c) does not create a separate offense because its only effect is to raise the penalty when an enumerated offense is committed in a designated place); see also Uribe v. State, 573 S.W.2d 819 (Tex. Crim. App. 1978).").

(6) The federal constitutional guarantee of the right to a jury trial does not apply to misdemeanors carrying a maximum sentence of six months or less. Therefore, in such misdemeanor cases, there is no constitutional right to have a jury finding of the true of many sentence enhancements. This gives rise to an argument that Martinez-Zapata does not convert such sentence enhancement findings into elements of the offense for immigration purposes. See Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 428 n.2 (BIA 2007) ("Apprendi v. New Jersey, supra, and its progeny focus on admissions by the defendant or findings by a jury beyond a reasonable doubt. Offenses carrying maximum sentences of 6 months or less, however, are not required to be tried before a jury. See Lewis v. United States, 518 U.S. 322 (1996).") The BIA, however, has expressly left this question open. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 430 n.6 (BIA 2007) ("We have no occasion here to decide whether we would treat as an element any such factor required by the convicting jurisdiction to be proved beyond a reasonable doubt to a court rather than a jury."), citing Harris v. United States, 536 U.S. 545 (2002), and Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004).

(7) The sentence enhancement in Martinez-Zapata converted a Class B misdemeanor, in violation of Texas Health & Safety Code 481.121(b)(1) to a Class A misdemeanor, in violation of Texas Health & Safety Code 481.134(f)(1). Martinez-Zapata, supra, at 425. This can fairly be said to affect the "conviction" directly, since the defendant under this statute is now "convicted" of a Class A misdemeanor, rather than a Class B misdemeanor. On the other hand, a sentence enhancement that merely alters the maximum possible sentence for a conviction cannot be said to affect the conviction in the same way. Counsel can argue that this difference should lead to a distinction, but the chances of a court adopting this distinction seem limited.

(8) Martinez-Zapata expressly applies only with respect to "any post-Apprendi sentencing factor that is shown to have been found in accordance with the criminal law protections of a jury trial and burden of proof afforded a defendant in relation to the elements of an offense." Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 (BIA 2007). Therefore, counsel for respondent can argue that a given sentence enhancement was imposed in violation of due process, or another fundamental federal constitutional right, such as the Apprendi right to jury trial, and therefore does not under the facts of this case constitute an element of the offense of conviction. Matter of Martinez-Zapata, 24 I. & N. Dec. 424, 429 n.5 (BIA 2007).

Copyright (c) 2007 by Norton Tooby. All rights reserved.


About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

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