Ninth Circuit Reverses Aggravated Felony Adjustment in Illegal Re-entry Case. Remands for Resentencing

The sentencing guideline applicable to the crime of reentering the United States after having been deported (8 U.S.C. § 1326(a)) provides for an 8-level increase if the defendant had been previously convicted of an “aggravated felony.”  USSG § 2L1.2(b)(1)(C).  The Statute itself raises the statutory maximum from 10 to 20 years in such cases.  8 U.S.C. § 1326(b)(1) and (2). Under the guideline, a conviction for the offense of being a felon in possession of a firearm is an aggravated felony.  While state as well as federal convictions for this offence can be aggravated felonies – state convictions don’t count if they criminalize conduct that is not covered by the federal statute.  As it turns out, under federal law it is not illegal for someone previously convicted of a felony to possess an “antique firearm.”  18 U.S.C. § 921(a)(3).  Since the California felon-in-possession statute does not include an antique firearms exemption, conviction under that statute does not count as an aggravated felony under federal law.  That is so, even if a prior California conviction was based on possession of a firearm that would have been illegal under federal law.  That is the holding last month of the Ninth Circuit.  The Court vacated the defendant’s sentence and remanded for resentencing.  United States v. Hernandez, 2014 WL 5314991 (9th Cir. Oct. 20, 2014).