Equal protection may be violated by a sentencing decision or system that inflicts especially harsh sentences on individuals convicted of offenses that are not rationally distinguishable, for purposes of the penalty imposed, from less harshly punished offenses.[79]  Counsel can argue that punishing a noncitizen convicted of an identical offense far more harshly, by denial of many non-custodial rehabilitative programs resulting in far longer prison sentences, violates these principles by in effect basing longer prison sentences on the defendant’s nationality.

 

                The Due Process clauses of the Constitution, incorporated in the Fourteenth Amendment and thus applicable to the states, guarantee fundamental fairness in criminal sentencing procedures.[80]  Counsel can argue that due process is violated by a sentence framework that systematically excludes noncitizens from rehabilitative benefits routinely extended to similarly situated U.S. citizen defendants.

[79] Compare Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), with Marshall v. United States, 414 U.S. 417 (1974). 

[80] Townsend. v. Burke, 334 U.S. 736 (1948); Hicks v. Oklahoma, 447 U.S. 343 (1980).

Eighth Circuit

SENTENCE " COURT MAY IMPOSE HIGHER SENTENCE ON GROUND DEFENDANT WAS IN THE U.S. ILLEGALLY
United States v. Loaiza-Sanchez, 622 F.3d 939, 941 (8th Cir. Sept. 22, 2010) (sentence in which court imposed a sentence above the bottom of the range because defendant committed his offenses while in the country illegally, not unconstitutional sentence based on alienage, since a person's legal status as a deportable alien is not synonymous with national origin), following United States v. Lopez-Salas, 266 F.3d 842, 846 n.1 (8th Cir. 2001) (a person's legal status as a deportable alien is not synonymous with national origin.).

Other

STATISTICS "NONCITIZENS ARE FOUR TIMES MORE LIKELY TO BE INCARCERATED FOR CRIME THAN U.S. CITIZENS
Light, et al., Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts, American Sociological Review 2014 79: 825, 835 (Compared to U.S. citizens, noncitizen offenders are over four times more likely to be incarcerated, and this effect is larger than the effects for race, ethnicity, gender, age, education, being convicted at trial, and any of the offense types.) (emphasis in original). http://asr.sagepub.com/content/79/5/825