(C)  National Origin.  The sentencing court must not consider inflammatory information such as the offender’s national origin or other prejudicial and irrelevant references to race, ethnicity or religion.[365]  Due process is also violated where the court bases the sentencing decision in part on the defendant’s status as a noncitizen.[366]  The court may violate due process if it imposes a harsher sentence because of the defendant’s nationality.[367]

[365] United States v. Vorrero-Isaza, 887 F.2d 1349 (9th Cir. 1989) (Colombian offender improperly sentenced more harshly than American codefendant in order to send warning to other Colombian drug traffickers).

[366] United States v. Onwuemene, 933 F.2d 650 (8th Cir. 1991).

[367] United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991) (sentence vacated since based in part on status of defendant as a noncitizen; the court stated: “The other thing that I feel warrants imposition at the high end of the guideline range: You are not a citizen of this country.  This country was good enough to allow you to come in here and to confer upon you . . . a number of the benefits of this society, form of government, and its opportunities, and you repay that kindness by committing a crime like this.  We have got enough criminals in the United States without importing any.”); United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir. 1989) (imposition of harsher sentence because of nationality violated due process); United States v. Edwardo-Franco, 885 F.2d 1002 (2d Cir. 1989) (improper to create appearance of ethnic bias as contaminating the judicial process).

Other

POST CON - GROUNDS - SENTENCE - JUDICIAL MISCONDUCT TO CONSIDER INAPPROPRIATE FACTORS AT SENTENCE
At sentencing, the court sometimes makes legal errors. In addition, the judge sometimes takes into account inappropriate considerations in imposing sentence, to which counsel must object or the error is normally waived. See People v. Scott, 9 Cal.4th 331, 353 n.16 (1995)(defense counsels failure to object to sentencing errors bars raising those errors on appeal except for errors considered jurisdictional). For example, it is judicial misconduct to make negative remarks about the defendant being on welfare and fathering children out of wedlock. People v. Bolton, 23 Cal.3d 208, 217 (1979). The court may not threaten to have the defendants castrated. United States v. Duhart, 496 F.2d 941 (9th Cir. 1974) (judge stated he could put defendant in same room with husbands of sex offense victims and possibly cut "something" out of the defendants body).