Criminal Defense of Immigrants

 

(A)  Federal Prosecution.  A person who is removed, returns to the U.S. without permission, and then is found in the United States by federal authorities,[491] is guilty of a federal criminal offense and can be sentenced to a maximum of 20 years in federal prison.[492]  Moreover, the sentence is subject to an increase in the base offense level under United States Sentencing Guidelines § 2L1.2 depending upon the noncitizen’s prior criminal history.  Defense of illegal re-entry prosecutions has become increasingly difficult, but a number of defenses remain available.[493]

 

The Supreme Court held that the prior convictions necessary to enhance a sentence for illegal re-entry are sentence enhancements, not elements of the offense.[494]  Prior convictions used to enhance a sentence for illegal re-entry under 8 U.S.C. § 1326(b)[495] therefore need not be included in the indictment or proven to a jury.[496]  The defendant need only have pleaded guilty to simple illegal re-entry after deportation under INA § 276(a),[497] in order to be subject to the sentence enhancement provision under INA § 276(b).[498]  In other words, the maximum penalty is not limited by the illegal re-entry offense to which a plea was entered.  The existence of the prior conviction that triggers a sentence enhancement need only be shown by clear and convincing evidence.[499]

 

                The current Guidelines[500] provide for a Base Offense Level of 8 for illegal re-entry.  A 16-level increase is applied for certain serious felony prior convictions, such as:

 

(a)           a drug trafficking offense for which the sentence imposed exceeded 13 months;

(b)           a crime of violence;[501]

(c)           a firearms offense;

(d)           a child pornography offense;

(e)           a national security or terrorism offense;

(f)            a human trafficking offense; or

(g)           an alien smuggling offense committed for profit . . . .[502]

The Guidelines provide for a 12-level increase if the prior conviction is “for a felony drug trafficking offense for which the sentence imposed was 13 months or less . . . .”[503] They provide for an 8-level increase if the prior conviction is “a conviction for an aggravated felony . . . .”[504]  They provide for a 4-level increase if the prior conviction is for “any other felony,” and the same if the defendant had suffered “three or more convictions for misdemeanors that are crimes of violence or drug trafficking crimes . . . .”[505]

 

                Under these Guidelines, some terms, including “crime of violence” and “drug trafficking offense,” are given different definitions than those applied in the aggravated felony context.  See § 19.22, infra.  Judicial decisions defining these terms must be carefully examined to determine whether they reach differing results based on the different language of the parallel provisions in these different contexts.  At least two courts have also found that while a categorical analysis must be applied to a conviction to determine whether it is an aggravated felony for immigration purposes, a factual approach may be applied in some cases to decide this question in a sentencing context.[506]

 

                The Guidelines appear to apply to all prior offenses, regardless of the date of conviction: “For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in INA § 101(a)(43), without regard to the date of conviction of the aggravated felony.”[507]

 

There is a large body of case law on whether, and how, a noncitizen facing prosecution for illegal re-entry may collaterally attack the validity of the underlying criminal conviction and/or the underlying deportation.[508]  For example, the Tenth Circuit has held that a prior conviction that has been vacated may still be used to trigger a sentence enhancement as long as the conviction existed at the time of the illegal re-entry.[509]  A full discussion of this topic is beyond the scope of this book.

[491] At least one court has found that the noncitizen must be found within five years of illegal re-entry, in order to be able to prosecute.  United States v. Gunera, 479 F.3d 373, (5th Cir. Feb. 13, 2007) (where the defendant was “found” in the United States more than five years following the defendant’s unlawful re-entry, indictment was barred by statute of limitations).

[492] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[493] See generally Note, Suppressing Defendant’s Identity and Other Strategies for Defending Against a Charge of Illegal Reentry After Deportation, 50 Stan.L.Rev. 139 (1997); McWhirter & Sands, A Primer for Defending a Criminal Immigration Case, 8 Geo.Immigr.L.J. 23 (1994); Yale-Loehr & Valente, Current Trends in Illegal Reentry Caselaw, 3 Bender’s Immigration Bulletin 1133 (1998); Swanson, Challenging Alienage – Is Your Client a U.S. Citizen?, Appendix 9-B,  following Chapter 9, in K. Brady, California Criminal Law and Immigration (2004).

[494] Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998).

[495] INA § 276(b), 8 U.S.C. § 1326(b).

[496] United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000); United States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001); United States v. Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001); United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 2001).

[497] INA § 276(a), 8 U.S.C. § 1326(a).

[498] Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998).

[499] United States v. Bonilla-Montenegro, 333 F.3d 1065 (9th Cir. June 9, 2003) (although presentence report (PSR) is not always sufficient evidence of a prior conviction, government burden may be satisfied if PSR specifies the exact statute under which the defendant was previously convicted; burden met in this case despite citation of the incorrect statute since PSR listed the offense by name and defendant admitted the conviction to the INS).

[500] Effective November 1, 2001.  Note that the United States Supreme Court has determined that the sentencing guidelines are merely advisory, not mandatory.  Blakely v. Washington, 124 S.Ct. 2531 (2004); United States v. Booker, 125 S.Ct. 738 (2005).  How, and to what extent, this will affect illegal re-entry sentencing is an active issue.  See, e.g., United States v. Ibarra-Hernandez, 427 F.3d 332 (6th Cir. Oct. 14, 2005) (vacating illegal re-entry sentence on Booker grounds); United States v. Hermoso-Garcia, 413 F.3d 1085 (9th Cir. July 7, 2005) (illegal re-entry sentence remanded in light of Booker); United States v. Camacho-Ibarquen, 410 F.3d 1307 (11th Cir. June 2, 2005) (district court’s error of treating Sentencing Guidelines as mandatory did not affect defendant’s substantial rights, as required by plain error standard), cert. denied, 126 S.Ct. 457 (Oct. 11, 2005); United States v. Lechuga-Ponce, 407 F.3d 895 (7th Cir. May 17, 2005) (sentence for illegal re-entry after deportation vacated for a limited remand so district court may determine whether it would have sentenced defendant differently had it known that the Sentencing Guidelines are advisory rather than mandatory).

[501] A crime of violence under U.S.S.G. § 2L1.2 (2001) need only be a felony, not an aggravated felony under INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), to trigger a 16-level illegal re-entry sentence enhancement. United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003).

[502] U.S.S.G. § 2L1.2(b)(1)(A).

[503] U.S.S.G. § 2L1.2(b)(1)(B).

[504] U.S.S.G. § 2L1.2(b)(1)(C).

[505] U.S.S.G. § § 2L1.2(b)(1)(D), (E), respectively.

[506] United States v. Mendoza-Sanchez, 456 F.3d 479 (5th Cir. Jul. 14, 2006) (Arkansas conviction of burglary, in violation of Ark.Code Ann. 5-39-201(a), constituted enumerated offense of “burglary of a dwelling,” justifying application of sentencing guideline’s 16-level crime of violence enhancement; although the record of conviction did not show burglary of a dwelling, defendant admitted to district court in illegal re-entry prosecution that offense was, in fact, burglary of a dwelling); United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (determination of whether taking indecent liberties with a child constituted “sexual abuse of a minor” for purposes of determining whether the offense was a “crime of violence” under U.S.S.G. § 2L1.2, is to be made by use of a “ordinary contemporary, and common meaning” approach rather than by use of the “categorical analysis” used to determine whether an offense is a crime of violence under 18 U.S.C. § 16); United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (disagreeing with United States v. Krawczak, 331 F.3d 1302, 1307 (11th Cir. 2003), the court held that the facts underlying a prior conviction may be examined to determine whether the smuggling offense was committed for profit, and categorical approach is inapplicable); United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, as opposed to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case; a conviction of interstate transportation in aid of racketeering with the intent to promote cocaine and marijuana trafficking, as disclosed by the language of the charge, was therefore held to be a drug trafficking conviction for this purpose).

[507] Application Note 2.  See also United States v. Camacho-Ibarquen, 404 F.3d 1283 (11th Cir. Mar. 30, 2005) (sentence enhancement proper for illegal re-entry following conviction of crime of violence, even where crime of violence occurred more than 10 years prior to illegal re-entry), vacated and superseded on denial of rehearing, 410 F.3d 1307 (11th Cir. June 2, 2005), cert. denied, 126 S.Ct. 457 (Oct. 11, 2005).

[508] See, e.g., United States v. Charleswell, 456 F.3d 347 (3d Cir. Aug. 1, 2006) (“where an alien is misled to believe that he has no opportunity for judicial review, the lack of an affirmative notice of the right to an appeal may combine to constitute a denial of the meaningful opportunity for judicial review, satisfying both § 1326(d)(2) and Mendoza-Lopez); United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir. May 30, 2006); United States v. Lopez, 445 F.3d 90 (2d Cir. Apr. 4, 2006) (for purposes of bringing a collateral attack of the underlying deportation order in prosecution for illegal re-entry, the IJ and BIA affirmatively misleading the noncitizen regarding eligibility for relief resulted in an improper denial of the opportunity for judicial review, as required to bring a collateral attack under 8 U.S.C. § 1326(d)); United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. Aug. 5, 2005) (although deportation was found retroactively improper in light of Leocal, noncitizen failed to meet requirements necessary to be allowed collaterally to attack deportation order, since noncitizen was not able to show he had been deprived of the opportunity for judicial review); United States v. Delacruz-Soto, 414 F.3d 1158 (10th Cir. July 12, 2005) (defendant cannot collaterally attack aggravated felony prior conviction during illegal re-entry prosecution); Romero v. INS, 399 F.3d 109 (2d Cir. Feb. 9, 2005) (petition for review denied over claim that due process rights were violated when counsel failed to inform the immigration court that the noncitizen was married to a United States citizen and eligible to adjust status); United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. Oct. 6, 2004) (California conviction for possession of a controlled substance was not an aggravated felony, therefore IJ erred in failing to inform respondent that he was eligible for voluntary departure; district court therefore erred in dismissing collateral attack of illegal re-entry conviction); United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. Aug. 22, 2003) (conviction and sentence for re-entry after having been deported under INA § 276(a), 8 U.S.C. § 1326(a), reversed since the defendant was denied due process at his deportation hearing, because he was eligible for relief but the Immigration Judge misadvised him to the contrary).

[509] United States v. Cisneros-Cabrera, 110 F.3d 746 (10th Cir. Apr. 9, 1997).