Sentencing Under the Armed Career Criminal Act and an Immigration Case
The Fourth Circuit decided a immigration matter and a criminal case involving a defendant's challenge to his sentence under the armed career criminal enhancement.
In Cervantes v. Holder, No. 09-1519, the court faced a challenge to the BIA's decision affirming the IJ's denial of an application for temporary protected status by two brothers from Honduras, whose parents had already been residing in the U.S.
As stated in the decision: "On January 5, 1999 - while the petitioners were yet in Honduras - the Attorney General designated that country for the TPS program due to the devastation caused by Hurricane Mitch. The TPS is authorized by section 244 of the INA, which allows eligible nationals of a foreign state to temporarily remain in the United States during the pendency of that state's designation for the TPS program."
In affirming the holding, the court concluded that the BIA did not err in determining that the petitioners did not satisfy the two requirements for TPS eligibility as they did not demonstrate continuous physical presence nor that they continuously resided in the U.S. since December 30, 1998.
In US v. McNeil, No. 09-4083, the court faced a challenge to the district court's imposition of a sentence upon a defendant convicted of firearm possession and possession with intent to distribute crack cocaine as an armed career criminal.
In affirming the district court's sentence under the ACCA, the court concluded that defendant's prior felony convictions qualified as predicate offenses for purposes of the ACCA, and the district court did not abuse its discretion in the upward departure as the sentence was reasonable.
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