(A)  Defense Counsel’s Role.  It is vital that counsel safeguard the criminal and immigration goals of the defendant at sentence:

 

Counsel’s role in the sentencing stage of the criminal process is an extremely important part of the complete defense of his or her client.  Indeed, the Supreme Court has even suggested that the need for counsel may be greater at sentencing than in the determination of guilt because “[t]here a judge usually moves within a large area of discretion and doubts. . . .  Even the most self-assured judge may well want to bring to his aid every consideration that counsel for the accused can appropriately urge.”[3]

 

Counsel must take account of the immigration consequences of a noncitizen defendant’s sentence, just as counsel must for those flowing from the conviction itself.  See § § 2.32-2.37, supra.  This has two aspects: First, counsel must try to protect the defendant against immigration consequences that flow from the sentence, even if the plea or conviction itself does not trigger them.  Second, the immigration consequences themselves may trigger adverse criminal consequences, in the form of longer sentences and other direct criminal consequences of the criminal case.  Indeed, counsel may render ineffective assistance of counsel by failing to attempt to protect the client from these threats.[4]

[3] ABA Standards for Criminal Justice on the Defense Function, Standard 4-8.1, Commentary, p. 234 (1993), citing Carter v. Illinois, 329 U.S., 173, 178 (1946).

[4] See § 2.37, supra.

Fourth Circuit

SENTENCE " JUDICIAL CRITICISM OF EXCESSIVE INCARCERATION
United States v. Valdovinos, ___ F.3d ___, ___, 2014 WL 3686104 (4th Cir. Jul. 25, 2014) (Davis, Senior Circuit Judge, dissenting) (Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime. Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis. I deeply regret the panel's failure to take advantage of the opportunity to do so here.).

Other

BIBLIOGRAPHY " SENTENCE
Stephen R. Sady & Lynn Deffebach, A Defenders Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues (Aug. 2011) http://or.fd.org/Case%20Documents/BOP%20Update%202011.pdf