Aggravated Felonies

 

(A)  Illegal Re-entry.  A person who is convicted of an aggravated felony, is then deported or removed, and then returns to the U.S. without permission is guilty of a federal criminal offense and can be sentenced to a maximum of 20 years in federal prison.[196]  Moreover, the sentence is subject to an increase in the base offense level under the United States Sentencing Guidelines, § 2L1.2 on account of the existence of the prior aggravated felony conviction.  Defense of illegal re-entry prosecutions has become increasingly difficult, but a number of defenses remain available.[197]

 

The Supreme Court held that the aggravated felony prior convictions necessary to enhance a sentence for illegal re-entry are sentence enhancements, not elements of the offense.[198]  If a defendant is convicted for violating 8 U.S.C. § 1326(b)(1), that conviction must be vacated, since that provision does not state a separate offense, but a conviction for simple illegal re-entry after deportation[199] will be affirmed.[200]

 

 Prior convictions used to enhance a sentence for illegal re-entry under 8 U.S.C. § 1326(b)(2) need not be included in the indictment or proven to a jury because the allegation that the defendant suffered an aggravated felony conviction prior to deportation does not punish a separate crime, but constitutes a sentence enhancement.[201]  A sentence may be enhanced on account of the aggravated felony conviction under INA § 276(b)(2), despite the fact that the defendant pleaded guilty only to the non-aggravated offense under INA § 276(b)(1), or simple illegal re-entry after deportation under INA § 276(a). [202]  In other words, the maximum penalty is not limited by the illegal re-entry offense to which a plea was entered.  The existence of the prior conviction must be shown by clear and convincing evidence.[203]

 

            The current Guidelines[204] provide for a Base Offense Level of 8 for illegal re-entry.  A 16-level increase is applied for certain serious felony offenses, such as:

 

(a)        a drug trafficking offense for which the sentence imposed exceeded 13 months;

(b)        a crime of violence;[205]

(c)        a firearms offense;

(d)        a child pornography offense;

(e)        a national security or terrorism offense;

(f)         a human trafficking offense; or

(g)        an alien smuggling offense committed for profit . . . .[206]

They provide for a 12-level increase if the prior conviction is “for a felony drug trafficking offense for which the sentence imposed was 13 months or less . . . .”[207] They provide for an 8-level increase if the prior is “a conviction for an aggravated felony . . . .”[208]  They provide for a 4-level increase if the prior is for “any other felony,” and the same if the defendant had suffered “three or more convictions for misdemeanors that are crimes of violence or drug trafficking crimes . . . .”[209]

 

            Under these Guidelines, the terms “crime of violence” and “drug trafficking offense” are given their own definitions.[210]  These definitions are similar to, but different from, the definitions contained in the “aggravated felony” definition statute.[211]  Judicial decisions defining these terms must be carefully examined to determine whether they reach differing results based on the different language of the parallel provisions in these different contexts.  At least one court has determined that the categorical analysis used to determine whether an offense is an aggravated felony for immigration purposes does not need to be applied to determine whether an offense triggers a sentencing enhancement under the guidelines.[212]  See § 4.40, infra.

 

            The guidelines appear to apply to all prior offenses, regardless of the date of conviction: “For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in INA § 101(a)(43), without regard to the date of conviction of the aggravated felony.”[213]

[196] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[197] See generally Note, Suppressing Defendant’s Identity and Other Strategies for Defending Against a Charge of Illegal Reentry After Deportation, 50 Stan.L.Rev. 139 (1997); McWhirter & Sands, A Primer for Defending a Criminal Immigration Case, 8 Geo.Immigr.L.J. 23 (1994); Yale-Loehr & Valente, Current Trends in Illegal Reentry Caselaw, 3 Bender’s Immigration Bulletin 1133 (1998); Swanson, Challenging Alienage – Is Your Client a U.S. Citizen?, Appendix 9-B,  following Chapter 9, in K. Brady, California Criminal Law and Immigration (2004) (hereafter cited as “ILRC”).

[198] Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998).

[199] INA § 276(a), 8 U.S.C. § 1326(a).

[200] United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000); United States v. Alviso, 152 F.3d 1195 (9th Cir. 1998).  See United States v. Reyes-Lugo, 238 F.3d 305 (5th Cir. 2001).

[201] United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000); United States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001); United States v. Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001); United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 2001).

[202] Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998).

[203] United States v. Bonilla-Montenegro, 333 F.3d 1065 (9th Cir. June 9, 2003) (although presentence report (PSR) is not always sufficient evidence of a prior conviction, government burden may be satisfied if PSR specifies the exact statute under which the defendant was previously convicted; burden met in this case despite citation of the incorrect statute since PSR listed the offense by name and defendant admitted the conviction to the INS).

[204] Effective November 1, 2001.  Note that the United States Supreme Court has determined that the sentencing guidelines are merely advisory, not mandatory.  Blakely v. Washington, 124 S.Ct. 2531 (2004); United States v. Booker, 125 S.Ct. 738 (2005).  How, and to what extent, this will affect illegal re-entry sentencing is an active issue.  See, e.g., United States v. Ibarra-Hernandez, 427 F.3d 332 (6th Cir. Oct. 14, 2005) (vacating illegal re-entry sentence on Booker grounds); United States v. Hermoso-Garcia, 413 F.3d 1085 (9th Cir. July 7, 2005) (illegal re-entry sentence remanded in light of Booker); United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir. June 2, 2005) (district court’s error of treating Sentencing Guidelines as mandatory did not affect defendant’s substantial rights, as required by plain error standard), cert. denied, 126 S.Ct. 457 (Oct. 11, 2005); United States v. Lechuga-Ponce, 407 F.3d 895 (7th Cir. May 17, 2005) (sentence for illegal re-entry after deportation vacated for a limited remand so district court may determine whether it would have sentenced defendant differently had it known that the Sentencing Guidelines are advisory rather than mandatory).

[205] A crime of violence under U.S.S.G. § 2L1.2 (2001) need only be a felony, not an aggravated felony under INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), to trigger a 16-level illegal re-entry sentence enhancement. United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003).

[206] U.S.S.G. § 2L1.2(b)(1)(A).

[207] U.S.S.G. § 2L1.2(b)(1)(B).

[208] U.S.S.G. § 2L1.2(b)(1)(C).

[209] U.S.S.G. § § 2L1.2(b)(1)(D), (E), respectively.

[210] See Application Notes, 1(B)(ii) (crime of violence), 1(B)(iii) (drug trafficking offense).

[211] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (drug trafficking offense, referencing 18 U.S.C. § 924(c)), and INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (crime of violence, referencing 18 U.S.C. § 16).

[212] United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (determination of whether taking indecent liberties with a child constituted “sexual abuse of a minor” for purposes of determining whether the offense was a “crime of violence” under U.S.S.G. § 2L1.2, is to be made by use of a “ordinary contemporary, and common meaning” approach rather than by use of the “categorical analysis” used to determine whether an offense is a crime of violence under 18 U.S.C. § 16).

[213] Application Note 2.  See also United States v. Camacho-Ibarquen, 404 F.3d 1283 (11th Cir. Mar. 30, 2005) (sentence enhancement proper for illegal re-entry following conviction of crime of violence, even where crime of violence occurred more than 10 years prior to illegal re-entry), vacated and superseded on denial of rehearing, 410 F.3d 1307 (11th Cir. June 2, 2005), cert. denied, 126 S.Ct. 457 (Oct. 11, 2005).