(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).

First Circuit

ILLEGAL REENTRY - JUDICIAL REVIEW - FAILURE TO OBJECT AT TIME OF SENTENCE
United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. Nov. 14, 2006) (defendant waived objection to 16-level enhancement of illegal reentry sentence, based on argument that conviction did not constitute drug trafficking conviction under the USSG, by failure to object in the trial court). http://laws.lp.findlaw.com/1st/052374.html

ILLEGAL REENTRY - JUDICIAL REVIEW - FAILURE TO OBJECT AT TIME OF SENTENCE
United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. Nov. 14, 2006) (defendant waived objection to 16-level enhancement of illegal reentry sentence, based on argument that conviction did not constitute drug trafficking conviction under the USSG, by failure to object in the trial court). http://laws.lp.findlaw.com/1st/052374.html

Second Circuit

ILLEGAL RE-ENTRY - COLLATERAL ATTACK - JUDICIAL REVIEW
United States v. Lopez, 445 F.3d 90 (2d Cir. Apr. 4, 2006) (for purposes of brining a collateral attack of the underlying deportation order in prosecution for illegal re-entry, the IJ and BIA affirmatively misleading the noncitizen regarding eligibility for relief resulted in an improper denial of the opportunity for judicial review, as required to bring a collateral attack under 8 U.S.C. 1326(d)).

Third Circuit

ILLEGAL RE-ENTRY - COLLATERAL ATTACK OF REMOVAL ORDER
Debeato v. Atty Gen. U.S., 505 F.3d 231 (3d Cir. Oct. 9, 2007) (defendant must demonstrate underlying removal proceeding was "grossly unjust" in order collaterally to attack underlying order of removal during illegal re-entry prosecution; the fact that INA 212(c) relief was improperly denied on the basis that noncitizen did not have seven years residence, and improperly applying AEDPA aggravated felony bar to case pending on or before April 24, 1996, was not "grossly unjust" because denial of relief was proper under the law as it existed at that time).

RELIEF - ILLEGAL RE-ENTRY - JUDICIAL REVIEW - DUE PROCESS
United States v. Charleswell, 456 F.3d 347 (3d Cir. Aug. 1, 2006) ("where an alien is misled to believe that he has no opportunity for judicial review, the lack of an affirmative notice of the right to an appeal may combine to constitute a denial of the meaningful opportunity for judicial review, satisfying both 1326(d)(2) and Mendoza-Lopez).

Fourth Circuit

ILLEGAL REENTRY - SUPPRESSION OF IDENTITY INFORMATION FLOWING FROM ILLEGAL ARREST
United States v. Oscar-Torres, 507 F.3d 224 (4th Cir. Nov. 8, 2007) ("After arresting Raul Mesa Oscar-Torres without a warrant as part of a nationwide initiative to apprehend illegal alien gang members, law enforcement officers fingerprinted him and thus obtained his criminal and immigration records. The Government then charged him with one count of illegally reentering the United States following commission of a felony and deportation, in violation of 8 U.S.C.A. 1326(a) and (b)(1) (West 2005 & Supp. 2007). Prior to trial, Oscar-Torres moved to suppress the fingerprint evidence and the records obtained through it as the "fruit" of his illegal arrest. The district court denied the motion, reasoning that this evidence constituted "identity" evidence and therefore could never be suppressed. Oscar-Torres conditionally pled guilty, reserving the right to appeal denial of his suppression motion. We reverse and remand for further proceedings."). NOTE: This case is concerned a Fourth Amendment violation applicable to criminal proceedings, not the much more difficult Fifth Amendment protection.

Fifth Circuit

ILLEGAL RE-ENTRY - EX POST FACTO APPLICATION OF SENTENCING GUIDELINES
United States v. Rodarte-Vasquez,488 F.3d 316 (5th Cir. May 23, 2007) (defendants' sentences following conviction for illegally re-entering the United States in 2002 are vacated where application of the 2003 Sentencing Guidelines, as opposed to the 2002, constituted an ex post facto violation).

ILLEGAL RE-ENTRY - EX POST FACTO APPLICATION OF SENTENCING GUIDELINES
United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. May 23, 2007) (defendants' sentences following conviction for illegally re-entering the United States in 2002 are vacated where application of the 2003 Sentencing Guidelines, as opposed to the 2002, constituted an ex post facto violation).

Lower Courts of Fifth Circuit

ILLEGAL RE-ENTRY - SUFFICIENT EVIDENCE
United States v. Hernandez-Lopez, __ F.Supp.2d __, 2007 WL 2428219 (W.D. Tex. Aug. 23, 2007) (defendant cannot be convicted of illegal re-entry following deportation solely upon his own uncorroborated confession).

Seventh Circuit

ILLEGAL REENTRY - COLLATERAL ATTACK
United States v. De Horta Garcia, 519 F.3d 658 (7th Cir. Mar. 13, 2008) (conviction for illegal re-entry affirmed over defendant's challenge to the denial of his right to seek a discretionary waiver of deportation during his original deportation hearing where he defendant is barred from collateral attack on deportation order since alleged violation did not render the deportation order fundamentally unfair).

ILLEGAL REENTRY - DEFENSES - STATUTE OF LIMITATIONS - STATUTE COMMENCED WHEN IMMIGRATION AUTHORITIES ACTUALLY DISCOVERED DEFENDANT, NOT WHEN THEY SHOULD HAVE DISCOVERED HIM
United States v. Are, __ F.3d __, 2007 WL 2265118 (7th Cir. Aug. 9, 2007) (five year statute of limitations on prosecution for being found in the United States following removal starts to run on the date the immigration authorities actually discover noncitizens presence, identity, and status or when they arrested him, interrupting his illegal conduct).

RELIEF - ADJUSTMENT OF STATUS - ADJUSTMENT BAR TRIGGERED BY ILLEGAL REENTRY AFTER REMOVAL
Lino v. Gonzales. 467 F.3d 1077 (7th Cir. Nov. 6, 2006) (INA 241(a)(5) precludes a previously removed alien who has since illegally reentered the United States from adjusting status under INA 245(i), and petitioner does not fall within any exemption to this statute). http://caselaw.lp.findlaw.com/data2/circs/7th/051078p.pdf

ILLEGAL RE-ENTRY - WHERE "FOUND"
United States v. Rodriguez, 453 F.3d 458 (7th Cir. Jul. 6, 2006) (for illegal re-entry purposes, a noncitizen if "found" wherever s/he is physically when arrested by federal authorities, not where s/he is first identified as illegally present by state authorities). http://caselaw.lp.findlaw.com/data2/circs/7th/054786p.pdf

ILLEGAL REENTRY - SENTENCE
United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. Mar. 23, 2006) (imposition of a 41-month prison sentence was reasonable for a noncitizen convicted of illegal reentry after deportation following aggravated felony conviction).

Eighth Circuit

ILLEGAL RE-ENTRY-CONVICTION - PROOF OF IDENTITY
United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. Jun. 20, 2006) (NCIC report, which verifies records based upon fingerprint matches, was sufficient to show by a preponderance of the evidence that defendant had previously been convicted of an aggravated felony offense for purposes of illegal re-entry sentence enhancement). http://caselaw.lp.findlaw.com/data2/circs/8th/054125p.pdf

Ninth Circuit

REMOVAL " REINSTATEMENT OF REMOVAL " REENTRY WAS ILLEGAL EVEN THOUGH PROCEDURALLY REGULAR
Tamayo-Tamayo v. Holder, 709 F.3d 795 (9th Cir. Feb. 28, 2013) (denying petition for review of reinstatement of 1989 removal order, after illegal reentry, where 1993 removal order did not invalidate original removal order, and procedurally regular, yet substantively illegal, reentry met the requirement in INA 241(a)(5), 8 U.S.C. 1231(a)(5), that he had "reentered the United States illegally," where petitioner tricked the border official into allowing him physically to enter by presenting an invalid alien registration card).

ILLEGAL REENTRY - SENTENCE - EQUAL PROTECTION - 16-LEVEL ENHANCEMENT FOR ILLEGAL REENTRY DID NOT VIOLATE EQUAL PROTECTION ALTHOUGH SAME PRIORS WOULD HAVE CAUSED SMALLER ENHANCEMENT IF DEFENDANT HAD BEEN CONVICTED OF DIFFERENT OFFENSE
United States v. Ruiz-Chairez, 493 F.3d 1089 (9th Cir. July 6, 2007) (enhanced sentence for illegal reentry after deportation affirmed over an equal protection challenge, since Sentencing Commission did not act arbitrarily in treating one convicted of this offense more severely than a felon who is convicted of a different crime and has the same priors for enhancement purposes).

ILLEGAL REENTRY - SENTENCE - AGGRAVATED FELONY CONVICTIONS TRIGGER SENTENCE ENHANCEMENT REGARDLESS OF DATE OF CONVICTION
United States v. Olmos-Esparza, 484 F.3d 1111 (9th Cir. April 24, 2007) (district court did not err by considering convictions from 1972 and 1976 in calculating illegal reentry sentencing enhancements under USSG 2L1.2), (USSG 2L1.2 contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements); accord, United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006), petition for cert. filed November 22, 2006 (No. 06-7990); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert. denied, 126 S.Ct. 457 (2005).

ILLEGAL RE-ENTRY - AGGRAVATED FELONY & PRIOR REMOVAL AS ENHANCEMENTS
United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. Aug. 31, 2006) (sentence for illegal re-entry after prior deportation (in 1997) could not be further enhanced because of 2002 aggravated felony conviction, under 18 U.S.C. 1326(b)(2), since the aggravated felony conviction did not occur prior to the 1997 deportation).

ILLEGAL REENTRY - ILLEGAL REENTRY AS PROBATION VIOLATION
United States v. Ortuno-Higareda, 450 F.3d 406 (9th Cir. Jun. 8, 2006) (district court had jurisdiction to revoke defendant's supervised release upon illegal re-entry; sufficient evidence existed, without conviction for illegal re-entry, to prove that defendant violated the conditions of his supervised release). http://caselaw.lp.findlaw.com/data2/circs/9th/0410257p.pdf

RELIEF - ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir. May 30, 2006) (California conviction for vehicular manslaughter, in violation of California Penal Code 191.5(a) is not an aggravated felony crime of violence, in light of Leocal, for immigration purposes; Immigration Judge therefore improperly advised noncitizen that he was not eligible for relief; conviction for illegal re-entry following removal therefore cannot be sustained.)

Lower Courts of Ninth Circuit

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - IJ FAILURE TO ADVISE OF RELIEF
United States v. Lopez-Menera, ___ F.Supp. __ (N.D.Cal. Feb. 13, 2008) ("Because the IJ's failure to inform defendant of his eligibility for voluntary departure violated his due process rights, and because this violation caused defendant prejudice, the underlying order of deportation cannot be used as an element of a conviction under 1326.").

OVERVIEW - ILLEGAL RE-ENTRY
United States v. Garcia-Espana, ___ F.Supp.2d ___, 2007 U.S. Dist. LEXIS 15696 (E.D. Wash. March 6, 2007) (defendant may not be convicted of illegal reentry after deportation, where INS erred in concluding that he was deportable because of his vehicular homicide conviction, which in turn, invalidated his deportation order, which violated his due process rights and therefore cannot serve as a predicate element of his 1326 conviction).

OVERVIEW - ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Lopez-Hernandez, __ F.Supp.2d __ (N.D. Cal. Feb. 23, 2007) ("[T]o collaterally attack his 1997 deportation proceeding, Lopez-Hernandez must demonstrate: (1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair.")

OVERVIEW - ILLEGAL RE-ENTRY - COLLATERAL ATTACK
United States v. Lopez-Hernandez, __ F.Supp.2d __ (N.D. Cal. Feb. 23, 2007) (motion to allow collateral attack of immigration proceedings in prosecution for illegal re-entry granted where defendant demonstrated that immigration proceeding was improper where IJ failed to inform defendant [post-IIRAIRA, pre-St. Cyr] that he could apply for relief under former INA 212(c)).

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - IMMIGRATION JUDGE'S FAILURE TO USE CATEGORICAL ANALYSIS VIOLATED DUE PROCESS WHERE NONCITIZEN OTHERWISE HAD PLAUSIBLE BASIS FOR AVOIDING DEPORTATION
United States v. Meza-Corrales, ___ F. Supp. 2d ___, 2006 U.S. Dist. LEXIS 11199 (E.D. Wash. Mar. 1, 2006) (motion to dismiss illegal reentry charge granted on ground immigration judge violated due process by bypassing categorical analysis of Oregon conviction of attempted sexual abuse in the first degree, in violation of O.R.S. 161.405(2)(c) (which did not contain an element of the age of the victim), by improperly examining the record of conviction, though the statute was not divisible, and by improperly going beyond record of conviction to examine police reports to determine age of the victim).

Tenth Circuit

ILLEGAL REENTRY - SENTENCING - DISMISSED PRIORS
United States v. Chavez-Calderon, __ F.3d __, 2007 WL 2171363(10th Cir. Jul. 30, 2007) (district court was within its discretion in considering dismissed domestic violence charge and unprosecuted violations of stay-away orders in sentencing for illegal re-entry).

SENTENCE - ILLEGAL REENTRY SENTENCING GUIDELINES
United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir. Apr. 18, 2006) (noncitizen sentenced to 4-6 years for delivery of a controlled substance, with a further court order suggesting immediate deportation if deemed appropriate by the DHS, and actually deported 26 days later, is considered to have been sentenced to 6 years imprisonment for purposes of illegal re-entry sentencing enhancement; court rejected argument that order for immediate deportation was essentially an alternative suspended sentence).

Other

CRIMINAL DEFENSE - IMMIGRATION OFFENSES
R. McWhirter, Defending the Crime of Illegal Entry and Reentry, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 555 (2d ed. 2007).

ILLEGAL REENTRY - SENTENCE
Linda Drazga Maxfield & Keri Burchfield, Immigration Offenses Involving Unlawful Entry: Is Federal Practice Comparable Across Districts?, 14 Fed. Sent. R. 260, Mar.-Apr.2002.

IMMIGRATION OFFENSES - NEW AFM CHAPTER
AFM revision: Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, Revisions to Adjudicator's Field Manual (AFM) to Include a New Chapter 40.6 (AFM Update AD07- 18); USCIS, Mar. 3, 2009: "This memorandum provides guidance, through the creation of a new chapter 40.6 of the Adjudicator's Field Manual (AFM), regarding the interpretation of the grounds of inadmissibility contained in section 212(a) (6) of the Immigration and Nationality Act (the Act), addressing illegal entrants and immigration violators." http://www.uscis.gov/files/nativedocuments/section212_a_6_immi_natl_act_illegal_violators.pdf