Sentencing enhancements do not define a crime for purposes of the categorical approach

Chavez-Alvarez v. Attorney General, http://www2.ca3.uscourts.gov/opinarch/161663p.pdf

The Third Circuit reversed the BIA’s removal of a lawful permanent resident – finding his military conviction for sodomy was not a crime involving moral turpitude. The BIA had reasoned that the application of a sentencing enhancement in his case was the “functional equivalent” of a conviction for the enhanced offense of forcible sodomy. Applying the categorical approach, the Third Circuit ruled that sodomy did not require proof of force and, given Lawrence v. Texas, was not a crime involving moral turpitude. The President’s delegated authority to define (and enhance) punishments did not function to define the crime itself.