Colo. "Misdemeanor" a Felony For Reentry Sentencing Purposes

U.S. v. Cordova-Arevalo, --- F.3d ----, 2006 WL 2259076 (10th Cir. August 08, 2006)

D pleaded guilty to reentry after deportation, 8 U.S.C. § 1326(a)(1),(2). His sentence was enhanced by 16 levels, treating his prior Colorado conviction (third degree assault) as a felony crime of violence. D did not challenge the enhancement; rather, he argued that he should be sentenced under 8 U.S.C. § 1326(a), which caps a sentence at two years incarceration, because (1) CO classified his conviction as a misdemeanor (he received 10 days); (2) 1326 does not define “felony” and because it allows either a state or federal definition it is therefore ambiguous; (3) the state definition should control (and not the guideline definition of felony at 2L1.2) The 10th applies a “broad federal concept” for what is meant by felony, looking to the term in the context of the statute as a whole. The meaning for felony, which is understood by reference to 18 USC 3559(a), defines felonies by reference to the maximum punishment attributable to an offense. (D’s prior CO offense carries a maximum punishment of 18 months though still classified as a misdemeanor.)