Criminal Defense of Immigrants


§ 21.40 B. Illegal Re-Entry Sentencing

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The U.S. Sentencing Guidelines currently impose an 8-level upward departure in the base offense level for illegal re-entry if a defendant has before deportation been convicted of an aggravated felony.[358]  However, a 16-level upward departure will be imposed if the conviction is for: (i) a drug trafficking offense with a sentence imposed in excess of 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a terrorism offense; (vi) human trafficking; or (vii) alien smuggling.[359] 


The USSG defines a drug trafficking offense as:


an offense under federal, state or local law that prohibits the manufacture, import, export, distribution or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.[360]


Because the “drug trafficking” definition applied in the illegal re-entry sentencing context is not the same as that used in the aggravated felony controlled substances ground,[361] some offenses will be considered drug trafficking offenses for sentencing purposes, but not aggravated felony drug trafficking, and vice versa.  See § 19.22, supra.

[358] U.S.S.G. § 2L1.2(b)(1)(C) (2005).

[359] U.S.S.G. § 2L1.2(b)(1)(A) (2005) (emphasis added).

[360]  Application Note 1(B)(iv) to USSG § 2L1.2.

[361] See § 19.56, supra.