Predicate convictionsPredicate convictions often set the mandatory minimum or maximum sentence (or are elements of) a federal crime. The necessary finding is by the court, not the jury.
The questions that follow explore whether predicate convictions have that effect, identify the statute that defines the predicate, and note any Supreme Court cases bearing on the definition. An overview is proded in the form of a chart; click on the image to the right to view it full sized.
This inquiry is independent of the use of prior convictions to compute the criminal history or career offender status under the U.S. Sentencing Guidelines. Consult the excellent Federal Sentencing Guidelines Calculator web site for those calculations.
The instant offense of conviction is:
start → immigration crimes
Title 8 U.S.C. § 1326 authorizes the felony prosecution of aliens who enter or attempt to enter the U.S. after having been removed or denied admission to the United States. See generally the trialdex illegal reentry litigation tool.
Title 8 U.S.C. § 1425 authorizes felony prosecutions for persons who procure or attempt to procure, contrary to law, citizenship or naturalization for themselves or other persons.
The defendant is being sentenced for:
Title 8 U.S.C. § 1326(b)(1) bumps the maximum sentence for illegal reentry from two to ten years if the removal was subsequent to a conviction for three or more misdemeanors involving drugs, crimes against the person, or a felony.
Subsection 1326(b)(2) increases the maximum sentence to twenty years if removal was subsequent to a conviction for commission of an "aggravated felony" under state or federal law.
"Aggravated felonies" are crimes listed at
Murder, rape, or sexual abuse of a minor is an aggravated felony.
"Illicit trafficking in a controlled substance" is an aggravated felony.
An aggravated felony enhancement for drug trafficking is not extremely consequential, since the same conduct triggers a 12-level increase in the Sentencing Guidelines offense level. See
Attacks on state predicates sometimes make the claim that a state predicate is not "categorically" an aggravated felony where the underlying statute includes substances that are not included in the CSA. This claim has not been addressed by the Supreme Court.
The aggravated felony definition includes convictions for criminal activity involving firearms, destructive devices, and explosives.
The Supreme Court, in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), held that
The aggravated felony definition includes "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year."
This includes aiding and abetting a theft offense. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).
The aggravated felony definition includes crimes that involve fraud or deceit in which the loss to the victim or victims exceeds $10,000, or
tax evasion where the revenue loss to the government exceeds $10,000.
The $10,000 thresholds are not part of the generic crime definition, and consequently need not be an element of the federal or state crime. Nijhawan v. Holder, 557 U.S. 29, 32 (2009).
Kawashima v. Holder, 565 U.S. 478 (2012), the Court held that violations of
Defendants have argued that this rules out conspiracy convictions in states that do not require proof of an overt act. That issue has not been examined by the Supreme Court.
start → assault and violent felonies
Predicate offenses may be an issue in prosecutions for assault or other violent conduct. Specifically, that would include prosecutions:
Title 18 U.S.C. § 117 ("Domestic assault by an habitual offender") provides for a five year sentence for domestic assaults within the special maritime and territorial jurisdiction of the United States, or in Indian country, where the defendant had "final convictions" on two separate occasions in state, federal, or Indian tribal courts for offenses, if subject to federal jurisdiction, that would constitute an:
"Assault" is not defined in the United States Code, so courts apply the common law meaning to the term: an attempt to commit a battery, or an act that puts another in reasonable apprehension of immediate bodily harm.
"Sexual abuse" refers to the federal crimes listed in Title 18, chapter 109A, and any state crimes that are a categorical match, that is, where the elements of the state crime of conviction include all of the elements of the federal crime.
start ... serious violent felony
A "serious violent felony" is a federal or state
manslaughter (other than involuntary manslaughter),
assault with intent to commit murder, assault with intent to commit rape,
abusive sexual contact,
firearms use (and possession as proscribed by
It also includes "any other offense punishable by a maximum term of imprisonment of 10 years or more" that "has as an element the use, attempted use, or threatened use of physical force against the person of another" (a "force" or "elements" clause), or "that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense" (a
The residual clause of paragraph (ii) appears to have been abrogated by Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
Robbery and "force/elements clause" crimes do not apply where defendants can establish by clear and convincing evidence that the offense involved neither the use nor the threatened use of a dangerous weapon, and that no one suffered
serious bodily injury.
Substantial bodily injury means "bodily injury which involves (A) a temporary but substantial disfigurement; or (B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty."
"Serious bodily injury" means bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of—(i) 2 or more serious violent felonies; or(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.
start ... serious drug offense
"Serious drug offense" is defined in 18 U.S.C. § 3559(c)(2)(H) to include:
The maximum sentence for naturalization fraud is ten years, fifteen years if the defendant has two prior naturalization fraud convictions, twenty years if the offense was committed to facilitate a drug trafficking crime, and twenty-five years if the offense was committed to facilitate an act of international terrorism.
start ... drug trafficking crime
The term "drug trafficking crime" is defined using identical language in both
start ... death or life imprisonment
start ... other serious offenses
This is not the same thing as the broader definition of "felony drug offense"
start ... serious drug conviction
start → firearms and explosives
The instant crime of conviction is:
The crime of Transfer of Explosive Materials for Use in a Crime of Violence or Drug Trafficking Crime,
The crime of knowing transfer of a firearm for use in a crime of violence or drug trafficking crime,
Title 18 U.S.C. § 924(c)(3) defines "crime of violence" as an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, orParagraph (A) is a "force" or "elements" clause.
Paragraph (B) is a "residual clause" that appears to have been abrogated by Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
The Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), provides that defendants convicted of possession of a firearm by a prohibited person,
start ... enumerated crimes
Since Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court has taken the view that the crime is not defined by the definition adopted by the State of conviction, id. at 590, or the common-law definition, id. at 596, and does not require "especially dangerous conduct." Id. at 598. The crime definitions are understood in the "generic" sense in which the term is now used in the criminal codes of most States." Id. Courts are to follow a "categorical approach," examining "the fact of conviction and the statutory definition of the prior offense," not the actual facts underlying the conviction. Id. at 602.
We therefore hold that an offense constitutes "burglary" for purposes of aId. See also United States v. Stitt, 139 S.Ct. 399 (2018) (burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation qualifies as the enumerated violent felony of burglary).
start ... force or elements clauses
Statutes defining the term "violent crime" typically include a clause that reads "has as an element the use, attempted use, or threatened use of physical force against the person [or property] of another." Courts call these "force" or "elements" clauses.
The Supreme Court has held that "in the context of a statutory definition of "violent felony," the phrase "physical force" means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010).
The "maximum term of imprisonment":
Title 18 U.S.C. § 924(c) makes it unlawful to knowingly use, carry, or possess a firearm during and in relation to (or to possess the firearm in furtherance of) a crime of violence or drug trafficking crime prosecutable in federal court.
start → identity theft
Aggravated identity theft convictions, 18 U.S.C. § 1028A, are enhanced if committed during and in relation several hundred enumerated crimes.
start → federal sex offense
Title 18 U.S.C. § 3559(e)(1) calls for a mandatory life sentence for persons convicted of a "federal sex offense" in which a minor is the victim if they have "a prior sex conviction in which a minor was the victim, unless the sentence of death is imposed."
A "federal sex offense" is defined in
start → pornography
Title 18 Chapter 110 child pornography statutes call for enhanced penalties if the defendant has a one or more qualifying prior convictions.
The state predicate definitions differ slightly in wording for each statute, but take this general form: "under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual [contact] involving a minor or ward, or [sex trafficking] of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography." Some of the statutes substitute "conduct" for "contact" and "sexual exploitation" for "sex trafficking."
start → drug crimes
Prior convictions enhance the sentence for:
The instant offense was committed:
Prior to December 21, 2018,
21 § 841(b)(1) provided for enhanced sentences for defendants who had been previously been convicted of one or more "felony drug offenses," defined in former
See also Burgess v. United States, 553 U.S. 124 (2008) (state drug offense that is "punishable by imprisonment for more than one year" qualifies as a "felony drug offense" even if state law classifies that offense as a misdemeanor).
The current version of § 841(b)(1) provides for enhancements for: