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April 21, 2008

Eleventh Circuit reverses sentence "impermissible factor"

The Eleventh Circuit has reversed a short probation revocation sentence US v. Velasquez, No. 06-16637 (11th Cir. Apr. 21, 2008) (available here) because the judge relied on an "impermissible factor."  Here are the highlights:

Wilber Guillermo Velasquez Velasquez appeals his nine-month sentence for violation of his supervised release. Velasquez’s sole argument on appeal is that his sentence was based on the district court’s disapproval of the fact that immigration officials had released him on bond pending the outcome of his asylum proceedings.  Velasquez argues that the district court exceeded its statutory sentencing authority by basing his sentence on this fact.  We agree.  Whether he should have been detained or released during the pendency of his immigration proceedings was a matter for an immigration judge to decide, and the district court lacks jurisdiction over immigration matters.  We vacate his sentence and remand for resentencing....

In reviewing the reasonableness of a sentence imposed after conviction, we review de novo, as a question of law, whether a factor considered by the district court in sentencing a defendant is impermissible.  United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). “A sentence that is based entirely upon an impermissible factor is unreasonable because such a sentence does not achieve the purposes of § 3553(a).”  United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).

Here, the district court imposed Velasquez’s sentence as if it were reviewing (and overturning) the IJ’s decision to release Velasquez on bond pending his immigration proceedings.  However, the district court lacks the authority to do so.

April 21, 2008 at 04:59 PM | Permalink

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