Safe Havens

 

(D)  Constitutional Limitations on Sentence.  If the Constitution imposes limits on the maximum custody sentence a court may impose for a given offense, and those limits are less than the maximum required by a particular ground of deportation, counsel can argue that the conviction does not trigger the ground of deportation.  In United States v. Booker, [133] the Supreme Court held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”[134]  Justice Breyer wrote the second part (the remedial portion) (joined by Rehnquist, O’Connor, Kennedy, and Ginsburg) which concluded that the statute which makes the sentencing guidelines mandatory[135] and the section that provides for de novo appellate review of sentences outside the Guidelines,[136] violate the Sixth Amendment and must be severed from the rest of the Sentencing Reform Act of 1984.  With this modification, the Guidelines are effectively advisory, requiring the court to consider Guidelines ranges[137] but permitting it to tailor the sentence in light of other statutory concerns.[138]  The decisions are binding on all cases that are currently on direct review.

 

The Supreme Court held that a court cannot constitutionally impose any increased punishment, or sentence enhancement, based on aggravating facts, other than prior convictions, that were not found by a jury or admitted by the defendant, even where the additional punishment results in a sentence that is less than the statutory maximum for the offense. [139]  This principle means the sentencing procedures are unconstitutional where the state uses mandatory sentencing guideline schemes, such as those found in Minnesota,[140] New Jersey,[141] North Carolina,[142] Ohio,[143] Oregon,[144] and Pennsylvania,[145] among others.[146]

 

            The immigration courts must of course follow the Supreme Court in this matter.  In Matter of Yanez-Garcia,[147] the BIA required itself “to follow the authoritative decisions of the federal circuit courts of appeals regarding interpretation of a provision of federal criminal law that is referenced in the Immigration and Nationality Act.”[148]  This applies to the Supreme Court as well.[149]

[133] United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005) (Sixth Amendment as construed by Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), applies to the Federal Sentencing Guidelines because they are mandatory; advisory provisions would not implicate the Sixth Amendment, because judges may exercise broad discretion in imposing a sentence within a statutory range).

[134] United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 73 USLW 4056 (Jan. 12, 2005)

[135] 18 U.S.C. § 3553(b)(1).

[136] 18 U.S.C. § 3742(e).

[137] 18 U.S.C. § 3553(a)(4).

[138] 18 U.S.C. § 3553(a).

[139] Blakely v. Washington, 524 U.S. __, 124 S.Ct. 2351 (2004).

[140] Minnesota Sentencing Commission.

[141] See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000) (reversing New Jersey hate crimes enhancement).

[142] N.C. Gen Stats. § 15A-1340.16(d).

[143] OH Rev’d Code § 2929.12.

[144] Oregon Criminal Justice Commission

[145] Pennsylvania Commission on Sentencing

[146] The National Center for State Courts has published a survey of how Blakely will affect the various states. See “Blakely v. Washington: Implications for State Courts,” available at  http://www.ncsconline.org/WC/Publications/KIS_SentenBlakely.pdf

[147] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).

[148] Id. at 396.

[149] Thanks to Dan Kesselbrenner for this analysis.  See Kesselbrenner, Food for Thought, 2005 AILA Immigration and Nationality Law Handbook (2005 forthcoming).