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November 30, 2009

"Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too)"

The title of this post is the headline of this new article by Doug Keller now available via SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases—and only in illegal re-entry cases.  The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels.  In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years—costing taxpayers up to $200,000—because of a single prior conviction that could have occurred years or even decades ago. Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction.  No other federal crime is punished based primarily on what the defendant previously did.  And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase.  That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist.

Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent.  Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry.  This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence.  Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.

November 30, 2009 at 09:12 AM | Permalink


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I don't see that the USSC need provide a justification, it seems quite apparent to me. Someone who illegally reenters the country has shown a special form of contempt for the law. I would prefer that such reentry would make the alien death eligible.

As for the provided examples, I would ask how often such things actually happen. There are all sorts of federal offenses where the defendant theoretically faces 20 years yet in the end gets a much shorter sentence.

Posted by: Soronel Haetir | Nov 30, 2009 9:28:41 AM

"I would prefer that such reentry would make the alien death eligible."

I totally agree for crimes of serious violence, e.g., rape.

Posted by: federalist | Nov 30, 2009 11:18:51 AM

@ Soronel: the 16-level enhancement frequently applies to offenders with relatively minor prior convictions. I've represented several people who received probation at the state court level for the very same crimes that the government is attempting to use to boost the offense level by 16 points.

It's insane. And it does, in fact, happen all the time. I suppose it's possible that some who return to the country after deportation show a "special contempt" for the law, but it's far more likely that they come back to work, or to continue to take care of their families, or because they've lived in the U.S. since age 2 (going to school here, working, etc.).

Have you ever met someone charged with this offense?

Posted by: Pedro | Dec 5, 2009 1:11:22 AM

I am an angry peaved off mother, who's son was sent to prison the DA, Judge and all the jury knew he was innocent of the charges, but sentenced him anyway. I have been trying to get some one to help me pro bono as they took every dime we had and gave him a harsh sentence.
He was illegally given a five year enhancement,jury did not follow instructions, every one involved in his con viction was the same ethnic background as the alledged victim. Most of the jury were the same ethnic background, and the judges mother has the same name as the alledged victim. This is not just an isolated issue this was planned to emprison my son. Is there anyone out there that can help me, before his time runs out for a writ of habeas corpus? Runs out in April

Posted by: BJ Pruitt | Feb 18, 2010 12:15:19 PM

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