(G)  Failure to grant downward departure on basis of harshness of deportation. [416]   A motion for downward departure was granted upon a demonstration that otherwise, the defendant would be subject to deportation to Mexico, and deportation would be extraordinarily harsh, because of the length of residence, large United States citizen family, and other equities.  The court found the resulting deportation would be a severe punishment not adequately accounted for in the Guidelines.  The defendant's minor role and lack of dangerousness were also factors supporting this decision.[417]  An order departing downward to render the defendant eligible for political asylum was reversed on the basis that the departure usurped the Attorney General's discretion under the immigration laws and lacked legal authority as Congress had affirmatively addressed the interplay between the criminal sentence and its collateral consequences.[418]

 

[416] See United States v. Angel-Martinez, 988 F.Supp. 475, 483 (D.N.J. 1997) (holding deportable status “is unavailable as a basis for departure absent some unusual aspect of a particular case” but noting no Third Circuit authority).

[417] United States v. Ferreria, 239 F.Supp.2d 849 (E.D. Wisc. November 6, 2002).

[418] United States v. Aleskerova, 300 F.3d 286 (2d Cir. 2002).

Ninth Circuit

POST-CONVICTION RELIEF - SENTENCE - POST-CONVICTION RULING THAT EARLIER SENTENCE HAD BEEN ILLEGAL
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor conviction of "theft by control of property with a value of $250 or more," in violation of A.R.S. 1301802(A)(1), (C), arguably would not constitute a one-year sentence imposed for removal purposes since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. 13-707, rendering the twelve-month sentence illegal on its face, requiring remand to the BIA to consider the issue in the first instance).

Eleventh Circuit

SENTENCING - SUPERVISED RELEASE CANNOT BE TOLLED UPON DEPORTATION
United States v. Okoko, __ F.3d __, 2004 WL 728864 (11th Cir. April 6, 2004) (period of supervised release as condition of parole cannot be tolled by district court during any period of absence from the United States subsequent to deportation, to resume if deported noncitizen later illegally reenters the United States).