Criminal Defense of Immigrants

(C)  Effect of Other Legal Limits on Sentence.  Counsel can argue that the critical maximum is the maximum possible sentence, as limited by constitutional doctrines,[322] sentence guidelines,[323] or other legal doctrines that define the “maximum lawful sentence” to imprisonment the court may impose on account of the conviction.  For example, if a constitutional limitation precludes a sentence of one year or more, then immigration counsel can argue, for example, that a CMT conviction could not trigger deportation under the one-CMT conviction ground of deportation.[324]  Some courts have rejected this type of argument in the illegal re-entry sentencing context.[325]

[322] United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (Jan. 12, 2005) (Sixth Amendment as construed by Blakely v. Washington, 542 U.S. 961 (2004), applies to the Federal Sentencing Guidelines because they are mandatory; advisory provisions would not implicate the Sixth Amendment, because judges may exercise broad discretion in imposing a sentence within a statutory range). The Supreme Court held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Justice Breyer wrote the second part (the remedial portion) (joined by Rehnquist, O’Connor, Kennedy, and Ginsburg) which concluded that the statute which makes the sentencing guidelines mandatory (18 U.S.C. § 3553(b)(1)) and the section that provides for de novo appellate review of sentences outside the Guidelines (18 U.S.C. § 3742(e)), violate the Sixth Amendment and must be severed from the rest of the Sentencing Reform Act of 1984. With this modification, the Guidelines are effectively advisory, requiring the court to consider Guidelines ranges (18 U.S.C. § 3553(a)(4)) but permitting it to tailor the sentence in light of other statutory concerns (18 U.S.C. § 3553(a)). The decisions are binding on all cases that are currently on direct review.

[323] See § 10.57(C), supra.

[324] See § 20.32, infra.

[325] United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004) (the statutory maximum, not the sentence range under applicable State sentencing guidelines, determines whether given offense qualifies as felony for federal sentencing purposes; prior Oregon conviction punishable by a maximum term of imprisonment of more than one year is an “aggravated felony” for federal sentencing purposes); United States v. Murillo, 422 F.3d 1152 (9th Cir. Sept. 9, 2005) (“in determining whether Washington state criminal conviction is of a crime punishable by a term exceeding one year for purposes of prosecution under 18 U.S.C. § 922(g)(1) (felon in possession of a firearm), maximum sentence for the prior conviction is defined by state criminal statute, not the maximum sentence in the particular case set by Washington’s sentencing guidelines.”); United States v. Alfaro-Hernandez, 453 F.3d 280 (5th Cir. Jun. 16, 2006) (felony classification of defendant’s underlying offense, for purposes of sentence imposed upon revocation of defendant’s supervised release on a conviction for transportation of an illegal alien, is determined by the underlying statute of conviction, not the Guidelines range as calculated by the district court).