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September 22, 2010

Can/should a sentencing judge increase a drug sentence because a defendant is an illegal alien?

The question in the title of this post splits an Eighth Circuit panel today in US v. Loaiza-Sanchez, No. 09-2999 (8th Cir. Sept. 22, 2010) (available here).  Here is how the majority opinion starts:
Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to conspiring to distribute and possessing with intent to distribute a substantial quantity of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.  After determining an advisory guidelines sentencing range of 168 to 210 months for each defendant, the district court concluded based upon the sentencing factors in 18 U.S.C. § 3553(a) that a sentence within that range was appropriate.  It then imposed a sentence above the bottom of the range because each defendant committed his offenses while in the country illegally.  Loaiza-Sanchez and Juarez-Gonzalez appeal their sentences of 188 and 200 months in prison, respectively, arguing primarily that “alienage” is an improper sentencing factor.  We affirm.
Here are portions of a dissent from Judge Bright:

In my view, increasing the sentence of a defendant because he is in the country illegally makes little sense when the defendant will be deported after serving his term of imprisonment. As I previously wrote in United States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long sentences for illegal aliens punish not only the defendant but the American taxpayer. “It would be more sensible to give . . . a stiff, but shorter sentence and then to promptly deport him . . . as an example to other would-be drug dealers.” Id.

Current data on our nation’s prison population and its associated costs evidences this point. Nonviolent offenders constitute over 60% of the prison and jail population.  John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010), http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.  Nonviolent drug offenders account for 25% of all offenders behind bars.  Id.  Our country currently spends over $75 billion per year on corrections. Id. at 2.  Reducing the number of nonviolent offenders in our prisons and jails by half would save our nation $16.9 billion per year. Id.  It would save the federal government $2.1 billion per year.  Id. at 11 . In this case, there is no record of violent conduct and no need to heavily punish the defendants or to burden the American taxpayer.

The record here contains no evidence that these defendants came to the United States for the purpose of dealing drugs.  And it simply seems unfair to punish these defendants differently than a United States citizen who commits the same crime.

September 22, 2010 at 04:04 PM | Permalink


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While I see that point, and the potential cost savings of simply commuting and deporting all illegal aliens, the question becomes one of punishment. Without firm controls in place to keep illegal aliens from rentering, that would be futile. Deportation simply doesn't prevent recidivism. Shortening the sentence for illegal aliens, simply to deport them and reap cost savings, would not change the system.

Posted by: Bill B. | Sep 22, 2010 4:59:23 PM

If there were some guarantee that a deported alien would not return I might agree with Bright. However given the current reality that many alien felons do return to the US to ply their trades I can not help but see increased prison terms as a rational response. More rational still would be for illegal entry coupled with a felony being a death eligible offense but we all know that's not about to pass muster with our robed overlords.

Posted by: Soronel Haetir | Sep 22, 2010 5:30:57 PM

well i look at it this way if a convicted felon who is deported returns illegally they should immediately be executed.

Posted by: rodsmith | Sep 22, 2010 10:26:34 PM

I oppose the death penalty, generally. But I completely agree with Rodsmith here. I have no patience for repeat illegal immigrants.

Posted by: JW | Sep 23, 2010 8:39:14 AM

Bill, some of the folks you're talking about risked death to get here. Many of them are here because they couldn't make a living in their own country. So do you really think folks in those circumstances will stay home rather than risk imprisonment?

Does it ever occur to you it was a matter of pure chance that you were born on the good side of the border?

Posted by: John K | Sep 23, 2010 1:53:45 PM

I agree john but we are not talking about plain old people who came here and are now working illegally at the local walmart. We are taking about people who are not only here ilegally but are comitting other felony's on top of that upto and including violent ones.

Sorry if they get caught they should be informed they have been caught and will be deported but to qualify for deportation instead of inprisonment followed by deportation then they have to plead guilty to the crimes and be informed that if they are caught again in this country ilegally they will be immediately EXECUTED.

Posted by: rodsmith | Sep 23, 2010 2:07:58 PM

No, actually I believe we're talking about non-violent drug offenders. And as the last graf of the set up for this thread notes, there was no evidence the defendants came here for the purpose of dealing drugs.

No offense, rodsmith, but you're starting to sound like SC and some of the other death-squad posters. Executed? Immediately? Wow. Is that the kind of country you want to live in, where the authorities are empowered to execute people summarily?

Posted by: John K | Sep 23, 2010 5:18:26 PM

i take it you missed this part!

"Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to conspiring to distribute and possessing with intent to distribute a substantial quantity of methamphetamine"

So drug dealers and considering the gangs control most of that probably gang members. I havent' seen too many of those classified as NON-VIOLENT! Most gang members are better armed than the police and even more visious just look at the mess mexico has now becuse they have allowed them free run of the northern part of the country for years since they were brining in money! Now they have so much money they no longer need the govt.

Posted by: rodsmith | Sep 23, 2010 10:36:04 PM

Those of you who were all giddy when Booker brought you the package labelled "judicial discretion unbound" should have known that this was inside. So let's hear no complaining now that not all the contents turn out to your liking.

Posted by: Bill Otis | Sep 24, 2010 12:39:01 AM

Rod, nowhere in this thread, other than in your most recent comment, do I see the word "gang."

Posted by: John K | Sep 24, 2010 9:23:59 AM

was simply playing the odds. latino's involved in dug production and distribution? majoriy of that is controled by games. They are expanding explosively especially in the south west. just look at what's happing along our southern border.

Posted by: rodsmith | Sep 24, 2010 3:09:45 PM

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