(B)  The Court’s Role.  The court often has great power over a noncitizen defendant’s sentence.  The sentencing court can consider the totality of the circumstances, including the immigration consequences of various sentence choices, in deciding upon an appropriate sentence in a particular case.  In fact, the court has almost unlimited discretion concerning the information on which it can rely in connection with sentence.[5]  The Supreme Court has stated:

 

The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends and his livelihood forever. Return to his native land may result in poverty, persecution and even death.[6]

 

The ABA has also encouraged judges to take immigration issues into account at sentencing: “Reviewing the immigration consequences with a noncitizen defendant and counsel for both parties enables a judge to exercise discretion in entering dispositions that achieve justice for the victims and community impacted by the crime, and address potential immigration consequences for the noncitizen defendants and their families.”[7]  The ABA Judge’s Guide to Immigration Law in Criminal Proceedings states:

 

Sentencing decisions stem from the informed exercise of discretion, which can include the consideration of the impact that a sentence may have on a defendant and his family and community. See, e.g., United States v. Tucker, 404 U.S. 443 (1972). This is particularly signifi­cant in light of the fact that the number of deportable offenses and crimes that are deemed “aggravated felonies” has been greatly expanded in recent years. At the time of sentencing, the court may want to take into consideration that an immigration detainer and subsequent removal proceedings will very likely result from a sentence to confinement in a county jail or prison. Immigration detainers frequently prevent noncitizens from being eligible for work furlough, halfway houses, therapeutic programs, or confinement in minimum-security facil­ities. See generally D. Kesselbrenner and L. Rosenberg, IMMIGRATION LAW AND CRIMES § 8:7 (West Group 2003). Where there is no detainer, however, a noncitizen who is sentenced to work release that does not entail incarceration or who is sentenced to community service, home detention, a live-in program, or a drug diversion program without first serving any time in jail, may not be subject to immediate immigration consequences. [8]

 

The court’s sentence choices therefore can have a powerful effect not only on the defendant’s immigration fate, but also on the length of the criminal sentence s/he serves.  In fact, it has been suggested that the sentencing judge is in effect acting as a deportation judge.[9]

 

                As the Washington Court of Appeals stated:

 

                We simply are not prepared to hold that a state sentencing judge exercising traditional sentencing discretionary authority runs afoul of the Supremacy Clause by imposing a sentence of one day less than a year to avoid the defendant’s deportation by federal authorities. The judge here is not circumventing federal law. He is simply acknowledging the obvious; federal law has the potential to influence the actual punishment visited upon a criminal defendant in state court. E.g., State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001). State court judges often make decisions mindful of federal implications. See, e.g., In re Marriage of Glass, 67 Wn. App. 378, 391-392, 835 P.2d 1054 (1992) (considering adverse [federal] tax consequences when adjusting [state] maintenance award).[10]

 

A court does not circumvent federal law by avoiding or vacating a deportable sentence, to impose a non-deportable equivalent sentence, when informed of the immigration consequences. 

 

                (1)  Discretion Under Federal Law.  Federal courts generally consider immigration consequences to be collateral consequences, so the court is not required to advise the defendant concerning them prior to plea.[11]  “To avoid unforeseen or unintend­ed immigration consequences of a particular sentence, courts may nonetheless choose to give such advisements; courts may also consider alternative pleas to charges as well as sentencing alternatives. In addition, courts may make an affirmative recommendation that a noncitizen defendant not be deported and be granted an immigration benefit. E.g., Mandarino v. Ashcroft, 290 F.Supp.2d 253 (C.D. Conn. 2002).”[12]  The basic federal sentencing statute requires federal judges to consider the kinds of sentence and sentencing range under the U.S. Sentencing Guidelines for the category of offense and category of the defendant.[13]  Judges also have wide discretion regarding to consider any other appropriate factors in imposing a sentence.[14]

 

                (2)  Court’s Right to Be Informed of Immigration Consequences of Sentence Choices.  Since the court’s sentencing decisions have such a powerful impact on the defendant, as well as his or her family and all who depend upon the defendant, the court may feel it is important for it to be informed of the immigation impact of sentence so it is not making this important decision blind.  To better inform judges on this subject, the American Bar Association has published a benchbook for judges called the Judge’s Guide to Immigration Law in Criminal Proceedings.[15]  The Ninth Circuit recently distributed a copy of this volume to each participant in its annual winter educational workshop, and other courts may choose to follow suit.

 

                (3)  Duty to Advise Defendant of Immigration Consequences.  Even though the federal court, in most circuits, need not advise the defendant concerning the collateral immigration consequences of plea, certain special federal court proceedings necessarily require that noncitizen defendants understand the immigration consequences of their pleas in order for the courts to accept the pleas and enter certain orders: stip­ulated judicial orders of removal, and judicial removal.  See § 10.40, infra.

 

(4)  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.[16]  The U.S. Sentencing Guidelines prohibit basing a sentence (or a downward departure) on national origin.[17]  Due process is also violated where the court bases the sentencing decision in part on the defendant’s status as a noncitizen.[18]  The court may violate due process if it imposes a harsher sentence because of the defendant’s nationality.[19] 

[5] Nichols v. United States, 511 U.S. 738 (1994); United States v. Larson, 112 F.3d 600 (2d Cir. 1997); United States v. Shacklet, 921 F.2d 580 (5th Cir. 1991); United States v. Moss, 631 F.2d 105 (8th Cir. 1980); State v. Rosa, 575 A.2d 727 (Me. 1990).

[6] Bridges v. Wixon, 326 U.S. 135, 164 (1945).

[7] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 4-17 (P. Goldberg & C. Wolchok, eds., 2004).

[8] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 4-18 (P. Goldberg & C. Wolchok, eds., 2004).

[9] M. Taylor & R. Wright, The Sentencing Judge as Immigration Judge, 51 Emory L.J. 1131 (2002).

[10] State v. Quintero-Morelos, 133 Wn. App. 591, 600 (June 22, 2006).

[11] E.g., United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003). 

[12] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 4-18 (P. Goldberg & C. Wolchok, eds., 2004).

[13] 18 U.S.C. § 3553(a)(4).

[14] Fed. R. Crim. P. 32; United States v. Tucker, 404 U.S. 443, 446 (1972).

[15] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings  (P. Goldberg & C. Wolchok, eds., 2004).

[16] United States v. Borrero-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).

[17] U.S.S.G. § 5H1.10. 

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

[19] 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).

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