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March 31, 2011

Seond Circuit discusses (and defends) illegal reentry guideline

The Second Circuit has interesting little federal sentencing opinion today in US v. Perez-Frias, No. 10-1401 (2d Cir. March 31, 2011) (available here), which engages and largely rejects a number of broadside attacks on the illegal reetry guideline. Here is how the opinion starts and a key passage:

Defendant Pedro Ruben Perez-Frias (“Perez-Frias”) pleaded guilty to one count of illegally reentering the United States without permission after having been deported following a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).  The United States District Court for the Southern District of New York (Chin, J.) sentenced Perez-Frias principally to 42 months’ imprisonment. Perez-Frias challenges only the substantive reasonableness of his sentence, arguing [1] that the district court’s sentence was unduly harsh in view of the 18 U.S.C. § 3553(a) factors and [2] that the 16-level enhancement applicable to reentrants with certain prior convictions (a) is not based on review of past sentencing practices and empirical studies, (b) is overly harsh compared to Guidelines applicable to more serious crimes, and (c) is greater than necessary in view of districts that have “fast track” programs. We affirm....

Perez-Frias argues that the 16-level Guideline enhancement for reentry is deficient because the Commission arrived at it without reference to specific empirical data. In support, Perez-Frias cites the Supreme Court’s decision in Kimbrough, 552 U.S. at 109, holding that district judges are entitled to conclude that the crack cocaine Guideline was greater than necessary to meet the standards of § 3553(a) if they believe the Guideline “do[es] not exemplify the Commission’s exercise of its characteristic institutional role”; and our recent decision in United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010), holding that “the Commission did not use [an] empirical approach in formulating the Guidelines for child pornography” and instead amended the Guidelines at the direction of Congress.

However, the absence of empirical support is not the relevant flaw we identified in Dorvee.  We criticized the child pornography Guideline in Dorvee because Congress ignored the Commission and directly amended the Guideline, which had the effect of “eviscerat[ing] the fundamental statutory requirement in § 3553(a) that district courts consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’” See 616 F.3d at 184-86, 187.  There is no such flaw in the reentry Guideline. Congress did not bypass the usual procedure for amending the Guidelines with respect to illegal reentry cases.  To the contrary, the 16-level enhancement in § 2L1.2 was based on the Commission’s own “determin[ation] that 20 these increased offense levels are appropriate to reflect the serious nature of these offenses.” U.S.S.G. Appx. C (amend. 375, Reason for Amendment”).

March 31, 2011 at 12:23 PM | Permalink


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Here's the problem with the illegal re-entry guidelines: they are based solely and exclusively on criminal history, and by definition only on prior cases for which the defendant already has been punished. A judge who follows the guidelines necessarily ignores all of the other matters that federal law requires a judge to consider, unless you condense those factors into "what other convictions does the defendant have." Some prior convictions count multiple times: the prior can increase the criminal history category, increase the offense level, and if the defendant was on probation, the criminal history category is increased yet again. If the defendant was on SRT when he returned, he gets revoked and sentenced for that, too, even though the case for which he received the term of SRT was the sole basis for increasing his guidelines.

But if we're concerned about criminal history, the guidelines ignore what a defendant may have done after re-entering the country. So someone who has no prior convictions and who re-enters and then commits a murder is looking at 0-6 months under the Sentencing Guidelines, while someone who committed a burglary of a habitation 30 years ago and has never been in trouble since is looking at 3-4 years.

In fact, the greatest offense level increase (the dread "16 levels") treats crimes like burglary of a habitation the same as crimes like murder; crimes like selling $20 worth of crack is treated the same as child molesting. Sex-related crimes are labeled "crimes of violence", regardless of whether they involved violence. Selling a tiny amount of crack is treated more harshly than simple possession of pounds of cocaine. There is no real rhyme or reason to them.

Finally, the guidelines utterly ignore things such as ties to the United States or reasons for re-entering. People who are brought here as young children, grow up here, go to school here, marry here, have kids here, and have no real connection to their birth country are being deported on a daily basis. We're supposed to be offended when they return, but who can blame them? But the guidelines make no provision for these circumstances, apart from a grudging mention as a ground for departure in the commentary.

In some places, illegal re-entry prosecutions make up a significant proportion of all federal prosecutions. It is time for a serious overhaul of this guideline.

Posted by: C.E. | Mar 31, 2011 11:18:52 PM


The person who re-enters and then commits a murder should be punished separately for the murder. I see no reason that re-entry should be either mitigated or enhanced based on post re-entry behavior (I fully support differentiating based on pre-deportation offenses, but only to the point that I think lesser offenders should be deported again, and those who were deported after more serious offenses or have been ordered out of the country multiple times should be executed).

I see absolutely no reason not to deport non-citizens who commit crimes, no matter how long they have been resident in the US.

Posted by: Soronel Haetir | Apr 1, 2011 1:23:18 AM

It's fair to say that "the absence of empirical support is not the relevant flaw we identified in Dorvee." But is the court saying that the only relevant flaw in Dorvee was that Congress had "directly amended" the child pornography guideline? If so, it's mischaracterizing that case. Unless my information is out of date, Congress has only "directly amended" three parts of the child pornography guideline, in the PROTECT Act: (1) the specific offense characteristic based on the number of images; (2) an application note interpreting the specific offense characteristic based on a "pattern of activity" involving sexual exploitation of children; and (3) a specific offense characteristic based on the sadistic or masochistic content of the images (which Congress added to the possession guideline, then 2G2.4, but which the Commission had already added to the then-separate guideline for receipt or distribution, 2G2.2, all on its own). But in Dorvee, the court criticized a number of other provisions of the child pornography guideline, including the base offense level and the enhancements for the age of the victim and the offender's use of a computer. So it's not really accurate to say that the problem in Dorvee was that Congress had "directly amended" the child pornography guideline, if that is what the court's saying. Granted, a lot of the provisions that seemed to bother the Dorvee court were the Commission's responses to specific congressional directives, so this may be a small quibble. But no fair reading of Dorvee can limit its reasoning to guidelines "directly amended" by Congress.

Posted by: student | Apr 1, 2011 5:12:54 PM

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