From the FPD Sentencing Resource Project:
The Sentencing Resource Project has not yet completed a paper deconstructing 2L1.2 (Illegal Reentry), but here is a brief passage regarding the Commissions policy and practice relating to departure rates and public comment that may be useful to you to show that the guideline is not based on past practice or empirical evidence and results in sentences that are greater than necessary to achieve the purposes of 3553(a).

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In fiscal year 2001, the rate of downward departure in immigration offenses was 35.6% and accounted for one-third of all downward departures. Downward Departures, at 38, 41-42. This prompted the Commission to amend 2L1.2 to provide graduated enhancements based on the prior conviction in an effort to reduce the rate of downward departures. Id. at 16-17. At the time, the Commission explained that the amendment "responds to concerns raised by a number of judges, probation officers, and defense attorneys . . . that 2L1.2 sometimes results in disproportionate penalties because of the 16-level enhancement" and that the "criminal justice system has been addressing this inequity on an ad hoc basis in such cases by increased use of departures." See USSG, App. C, Amend. 632 (Nov.
1, 2001).



However, the Commissions action in 2001 has not operated to reduce the rate of downward departure for illegal reentry, which remain as high as ever. In 2006, based on motions by the government and determinations by the courts, 36.5% of sentences imposed for illegal reentry were lower than the advisory guideline range, not including sentences reduced for substantial assistance under 5K1.1. See USSC, 2006 Sourcebook of Federal Sentencing Statistics, tbl. 28 (2006); see also USSC, 2007 Sourcebook of Federal Sentencing Statistics, tbl. 28 (2007) (showing below-guidelines sentences in 40% of illegal reentry cases). The trend continues in the wake of Gall and Kimbrough. See USSC, Preliminary Post-Kimbrough/Gall Data Report, tbl. 4 (July 2008) (showing below-guideline sentences in 38.4% of illegal reentry cases).



In addition, the Commission receives consistent public comment expressing concerns that the guideline penalties for illegal reentry are too high. See, e.g., Letter from Jon Sands to Hon. Ricardo Hinojosa, Re: Comments on Proposed Amendments, at 2-3 (Mar. 6, 2008); Letter from Jon Sands to Hon. Ricardo Hinojosa, Re: Proposed Priorities for 2007-2008, at 19 (July 9, 2007); Letter from Jon Sands to Hon. Ricardo Hinojosa, Re: Proposed Amendments Relating to Immigration at 3-4 (Mar. 2, 2007); Testimony of Jon Sands and Reuben Cahn before the U.S. Sentencing Commission Re: Proposed Immigration Amendments, San Diego, California (Mar. 6, 2006). [All documents available at
HYPERLINK "http://www.fd.org/pub_SentenceLetters.htm" http://www.fd.org/pub_SentenceLetters.htm]



By the Commissions own analysis and practice, the high rate of downward departure under 2L1.2 indicates that the guideline does not adequately reflect the considerations before the courts in illegal reentry cases and should be amended to allow the courts to impose lower sentences that are within the guidelines, which would have the desired effect of reducing the rate of downward departure. Until then, the actual sentences imposed for illegal reentry offenses, including the widespread use of government-sponsored downward departures, demonstrate that the current guideline is greater than necessary to achieve the goals of sentencing under 3553(a)(2).