Criminal Defense of Immigrants


§ 23.7 E. Illegal Re-Entry Sentencing

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The current sentencing guidelines[42] provide for a Base Offense Level of 8 for illegal re-entry.  A 16-level increase is applied for certain serious felony offenses, including firearms offenses.[43]


                For this purpose, a firearms offense is defined as:


(I) An offense under federal, state, or local law that prohibits the importation, distribution, transportation, or trafficking of a firearm described in 18 U.S.C. 921, or of an explosive material as defined in 18 U.S.C. 841(c).


(II) An offense under Federal, state, or local law that prohibits the possession of a firearm described in 26 U.S.C. 5845(a), or of an explosive material as defined in 18 U.S.C. 841(c).


(III) A violation of 18 U.S.C. 844(h).


(IV) A violation of 18 U.S.C. 924(c).


(V) A violation of 18 U.S.C. 929(a).

(VI) An offense under state or local law consisting of conduct that would have been an offense under subdivision (III), (IV), or (V) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.[44]


This definition is not exactly the same as that used in the aggravated felony firearms offense category.[45]  Therefore, there may be aggravated felony firearms offenses that do not trigger this 16-level enhancement, and vice versa.  A firearms offense may also trigger a 16-level sentence enhancement as a crime of violence.[46]

[42] 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).

[43] U.S.S.G. § 2L1.2(b)(1)(A).

[44] U.S.S.G. § 2L1.2, Cmt 1(b)(5).

[45] See § § 19.68-19.70, supra.

[46] Cf. United States v. Sarbia, 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada state court conviction of attempting to discharge firearm at occupied structure properly deemed a “crime of violence” for sentencing purposes under U.S.S.G. § 4B1.2 [armed career criminal act]).



Eleventh Circuit

United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. Apr. 21, 2009) (Georgia conviction for violation of Ga.Code Ann. 16-11-106(b) [possession of a firearm during commission of a crime] is close enough an equivalent to 18 U.S.C. 924(c) to result in 16-level enhancement for illegal-reentry sentencing after commission of a firearms offense; neither the statute of conviction, nor 18 U.S.C. 924(c) require "active employment" of the firearm; neither require transportation; it is sufficient that the firearm was found in proximity of the gun to the drugs and drug profits).