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Predicate convictions

Predicate 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. Almendarez-Torres v. United States, 523 U.S. 224 (1998).

This inquiry presented in this litigation tool 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 questions that follow identify predicate convictions that enhance sentences, identify the statute that defines the predicate, and note any Supreme Court cases bearing on the definition. An overview is provided in the form of an infographic; click on the image on the right to view it full sized.

The instant offense of conviction is:

 
 

startimmigration 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:

 
 

startimmigration crimesillegal reentry

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 8 U.S.C. § 1101(a)(43). Special considerations apply to:

Aggravated felonies used to increase the offense level under the U.S. Sentencing Guidelines, but that provision was deleted in 2016.

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(A)

Murder, rape, or sexual abuse of a minor is an aggravated felony. 8 U.S.C. § 1101(a)(43)(A).

In Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1567 (2017), the Supreme Court held that a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old did not qualify as sexual abuse of a minor under this statute.

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(B)

"Illicit trafficking in a controlled substance" is an aggravated felony. 8 U.S.C. § 1101(a)(43)(B). This includes federal offenses punishable under the Controlled Substances Act (CSA) by more than one year's imprisonment, and state crimes that proscribe conduct punishable as a felony under the CSA. See Moncrieffe v. Holder, 569 U.S. 184, 188 (2013).

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 U.S.S.G. § 2L1.2(b)(1)(B).

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.

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(C), (E)

The aggravated felony definition includes convictions for criminal activity involving firearms, destructive devices, and explosives. 8 U.S.C. § 1101(a)(43)(C), (E). This includes:

Arguments have been made that, since antique firearms may be exempt under federal law, that a state statute without such an exception may not qualify "categorically." Dicta in Moncrieffe v. Holder, 569 U.S. 184, 206 (2013), indicates that this argument requires a showing that "the State actually prosecutes the relevant offense in cases involving antique firearms."

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(F)

Title 8 U.S.C. § 1101(a)(43)(F) added crimes of violence, as defined in 18 U.S.C. § 16(b), but not including purely political offenses, for which the term of imprisonment is at least one year.

The Supreme Court, in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), held that § 16(b) was unconstitutionally vague, which has the effect of nullifying sentencing enhancements based on that statute.

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(G)

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." 8 U.S.C. § 1101(a)(43)(G).

This includes aiding and abetting a theft offense. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(M)

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. 8 U.S.C. § 1101(a)(43)(M).

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).

In Kawashima v. Holder, 565 U.S. 478 (2012), the Court held that violations of 26 U.S.C. §§ 7206(1) and 7206(2) (tax fraud) are categorically crimes involving fraud or deceit. It did not matter that § 7206(1) does not use the terms "fraud" or "deceit."

 
 

startimmigration crimesillegal reentry8 USC 1101(a)(43)(U)

The aggravated felony definition includes attempts or conspiracies to commit the enumerated offenses. 8 U.S.C. § 1101(a)(43)(U).

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.

 
 

startassault and violent felonies

Predicate offenses may be an issue in prosecutions for assault or other violent conduct. Specifically, that would include prosecutions:

 
 

startassault and violent feloniesdomestic assault

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:

The penalty is increased to ten years if the victim suffers substantial bodily injury.

 
 

startassault and violent feloniesdomesticassault

"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.

Commonly charged federal assault crimes are collected at Title 18 chapter 7 (Assault), but also appear in other chapters, e.g., 18 U.S.C. 1751(e) (Presidential and Presidential staff assault).

 
 

startassault and violent feloniesdomesticsexual abuse

"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 murder, manslaughter (other than involuntary manslaughter), assault with intent to commit murder, assault with intent to commit rape, sexual abuse, abusive sexual contact, kidnapping, aircraft piracy, robbery; carjacking, extortion, arson, firearms use (and possession as proscribed by 18 U.S.C. § 924(c), and any attempt, conspiracy, or solicitation to commit these crimes. 18 U.S.C. § 3559(c)(2)(F)(i). This is an enumerated crimes clause.

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 residual clause"). 18 U.S.C. § 3559(c)(2)(F)(ii).

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. 18 U.S.C. § 3559(c)(3). Arson does not count if defendants can establish by clear and convincing evidence that they reasonably believed that the offense posed no threat to human life, and that in fact it did not. Id.

 
 

startdomestic assaultsubstantial 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." 18 U.S.C. § 113(b)(1).

 
 

startserious violent felonyserious bodily injury

"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. 18 U.S.C. § 1365(h)(3).

 
 

startassault and violent feloniesthree strikes

Title 18 U.S.C. § 3559(c)(1) provides that persons convicted in a "court of the United States" of a "serious violent felony" shall be sentenced to life imprisonment if:

(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
(ii) one or more serious violent felonies and one or more serious drug offenses; and
(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:

Note that this "three strikes" definition of "serious drug offense" has the same name, but is more narrowly defined than the "serious drug offense" definition at 18 U.S.C. § 924(e)(2)(A) (Armed Career Criminal Act).

 
 

startimmigration crimesnaturalization fraud

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. 18 U.S.C. § 1425.

 
 

start ... drug trafficking crime

The term "drug trafficking crime" is defined using identical language in both 18 U.S.C. § 924(c)(2) and 18 U.S.C. § 929(a) as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46." By its terms, it does not include state convictions.

 
 

startviolent felonieshomicide death penalty

The statutory aggravating factors for homicide death penalty cases (18 U.S.C. § 3591(a)(2)) are listed at 18 U.S.C. § 3592(c). They include previous convictions for:

 
 

startviolent feloniesdeath penaltyviolent firearms felony

Title 18 U.S.C. § 3592(c)(2) defines "[p]revious conviction of violent felony involving firearm" as "a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in [18 U.S.C. § 921]) against another person."

This aggravating factor is not available for "an offense for which a sentence of death is sought on the basis of [18 U.S.C. § 924(c)]." Title 18 U.S.C. § 3592(c)(2).

 
 

start ... death or life imprisonment

Title 18 U.S.C. § 3592(c)(3) and (d)(1) define a statutory aggravating factor where the defendant has been previously convicted of another federal or state offense resulting in the death of a person, for which life imprisonment or a sentence of death was authorized by statute.

 
 

start ... other serious offenses

Title 18 U.S.C. § 3592(c)(4) defines a statutory aggravating factor in homicide death penalty cases for "other serious offenses." It requires that the "defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person."

Title 18 U.S.C. § 3592(d)(2) defines a statutory aggravating factor in drug offense death penalty cases for "other serious offenses." It requires that the "defendant has previously been convicted of two or more Federal or State offenses, each punishable by a term of imprisonment of more than one year, committed on different occasions, involving the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) or the infliction of, or attempted infliction of, serious bodily injury or death upon another person.

 
 

startviolent feloniesdeath penaltyfelony drug offenses

Title 18 U.S.C. § 3592(c)(10) ("two felony drug offenses") establishes a statutory aggravating factor where the the defendant "has previously been convicted of 2 or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance."

This is not the same thing as the broader definition of "felony drug offense" in former 21 U.S.C. § 802(44) (replaced by "serious drug felony," defined in § 802(57) in 2018). However, the two statutes define a felony using the same language, so the decision in Burgess v. United States, 553 U.S. 124 (2008) (§ 802(44) case holding that a state drug offense that is "punishable by imprisonment for more than one year" qualifies as a "felony drug offense" for purposes of the federal drug recidivist sentencing statutes, even if state law classifies that offense as a misdemeanor), would be persuasive authority in a § 3592(c)(1) case.

 
 

startviolent feloniesdeath penaltyserious federal drug offenses

Title 18 U.S.C. § 3592(c)(12) defines "serious federal drug offenses" as "violations of title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence of 5 or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise."

Titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 are the Controlled Substance Actand the Controlled Substances Import and Export Act.

 
 

startviolent feloniesdeath penaltysexual assault

Title 18 U.S.C. § 3592(c)(15) ("Prior conviction of sexual assault or child molestation") requires proof of convictions under Title 18 chapter 109A (sexual abuse) or chapter 110 (sexual abuse of children).

 
 

start ... serious drug conviction

Title 18 U.S.C. § 3592(d)(3) ("Previous serious drug conviction") where the "defendant has previously been convicted of another Federal or State offense involving the manufacture, distribution, importation, or possession of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) for which a sentence of five or more years of imprisonment was authorized by statute."

 
 

startfirearms and explosives

The instant crime of conviction is:

 
 

startfirearms and explosivesexplosives

The crime of Transfer of Explosive Materials for Use in a Crime of Violence or Drug Trafficking Crime, 18 U.S.C. § 844(o), is committed where the defendant transfers explosive materials, knowing or having reasonable cause to believe that they would be used to commit a crime of violence or a drug trafficking crime.

 
 

startfirearms and explosivesknowing transfer

The crime of knowing transfer of a firearm for use in a crime of violence or drug trafficking crime, 18 U.S.C. § 924(h), is committed where the defendant knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of violence or a drug trafficking crime.

 
 

startfirearms and explosivescrime of violence

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, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Paragraph (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).

 
 

startfirearms and explosivesprohibited person

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, 18 U.S.C. § 922(g), is subject to a mandatory sentence of fifteen years of imprisonment if the defendant has three prior convictions "for a violent felony or a serious drug offense."

 
 

startfirearms and explosivesprohibited personviolent felony

A "violent felony" under the ACCA is defined in 18 U.S.C. § 924(B) to include "any crime punishable by imprisonment for a term exceeding one year":

  • that "has as an element the use, attempted use, or threatened use of physical force against the person of another" ("elements" or "force" clause),
  • "burglary, arson, or extortion, involves use of explosives," (enumerated crimes clause), or
  • "otherwise involves conduct that presents a serious potential risk of physical injury to another." (residual clause)

The residual clause is unavailable because it is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015).

 
 

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 a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to "generic" burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.
Id. 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).

 
 

startfirearms and explosivesprohibited personserious drug offense

A "serious drug offense" under the ACCA is defined in 18 U.S.C. § 924(e)(2)(A) as a state or federal narcotics crime carrying a maximum term of imprisonment of ten years or more.

The "maximum term of imprisonment":

  • is determined after applying statutory recidivist enhancements. United States v. Rodriquez, 553 U.S. 377, 393 (2008).

  • is the maximum sentence applicable to the offense when the defendant was convicted of it. McNeill v. United States, 563 U.S. 816, 818 (2011).

 
 

startfirearms and explosives924(c)

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.

 
 

startidentity theft

The penalty for identity theft under 18 U.S.C. § 1028 is subjected to an enhanced penalty if the offense is committed to facilitate a crime of violence or drug trafficking crime.

Aggravated identity theft convictions, 18 U.S.C. § 1028A, are enhanced if committed during and in relation several hundred enumerated crimes.

 
 

startfederal 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 18 U.S.C. § 3559(e)(2)(A) to include the following:

Subsection 3559(e)(3) excludes predicates where the defendant can establish by clear and convincing evidence that the activity was consensual and noncommercial, a misdemeanor, or where no sexual act or activity occurred.

 
 

startpornography

Title 18 Chapter 110 child pornography statutes call for enhanced penalties if the defendant has a one or more qualifying prior convictions.

  • The penalty for § 2251 is in § 2251(e)
  • The penalty for § 2252(a)(1)-(3) is in § 2252(b)(1)
  • The penalty for § 2252(a)(4) is in § 2252(b)(2)
  • The penalty for § 2252A(a)(1)-(4) is in § 2252A(b)(1)
  • The penalty for § 2252A(a)(5) is in § 2252A(b)(2)
  • The penalty for § 2252A(a)(6) is in § 2252A(b)(1)

In each case there are enhancements for the following federal predicates: Title 18 U.S.C. Chapter 110 (sexual exploitation/abuse of children); 18 U.S.C. § 1591 (sex trafficking of children); Title 18 U.S.C. Chapter 71 (obscenity); Title 18 U.S.C. Chapter 109A (sexual abuse); Title 18 U.S.C. Chapter 117 (Mann Act); 10 U.S.C. § 920 (Uniform Code of Military Justice).

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."

 
 

startdrug crimes

Prior convictions enhance the sentence for:

 
 

startdrug crimesdrug offense death penalty

The statutory aggravating factors for drug offense death penalty cases ( 18 U.S.C. § 3591(b)) are listed at 18 U.S.C. § 3592(d). They include previous convictions for:

 
 

startdrug crimesmanufacture/distribute/dispense

The principal statute for charging drug crimes is 21 U.S.C. § 841, which specifies predicate crimes that are defined in 21 U.S.C. § 802. These statutes were amended effective December 21, 2018.

The instant offense was committed:

Note that under either version of the statute, the government must first file an information identifying the previous convictions. 21 U.S.C. § 85l(a)(l).
 
 

startdrug crimes841before December 21, 2018

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 21 U.S.C. § 802(44) as offenses that were "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant." substances.

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).

 
 

startdrug crimes841on or after December 21, 2018

The current version of § 841(b)(1) provides for enhancements for:

  • a "serious drug felony" defined in § 802(57) as a § 3559(c)(2) serious drug felony for which the offender served a term of imprisonment of more than 12 months, and was released from any term of imprisonment within 15 years of the commencement of the instant offense.

  • a "serious violent felony" defined in § 802(58) as a § 3559(c)(2) serious violent felony for which the offender served a term of imprisonment of more than 12 months; and any offense that would be a felony violation of 18 U.S.C. § 113 if committed in federal jurisdiction, for which the offender served a term of imprisonment of more than 12 months.