10-1470 U.S. v. Lopez

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Sentencing
Illegal reentry

In calculating the offense level for illegal reentry after removal, a sentence imposed on revocation of probation does not count under U.S.S.G. 2L1.2(b)91)(A)(i).

“Our interpretation of the guideline is consistent with both the purpose behind the enhancement and the larger goal of consistent application of the Sentencing Guidelines. Defendants who reenter the country illegally after having committed more serious drug trafficking crimes should be punished more severely than defendants who reenter the country illegally after having committed less serious drug trafficking crimes. The Guidelines use the length of the sentence as a rough measure of the seriousness of the underlying drug trafficking crime and the seriousness of the new crime of illegal reentry. Probation revocation sentences imposed after a defendant has been deported tell us little about the seriousness of either the prior drug trafficking crime or the new crime of illegal entry. Probation can be revoked for non-criminal and relatively less significant actions or inactions. Here, for example, the state court originally sentenced Lopez to 180 days in jail and 48 months of probation for his drug trafficking offense, indicating that it believed his offense to be of the less serious variety. The fact that his probation was later revoked for his inevitable failure to report to his probation officer after he was deported tells us nothing about the relative seriousness of the original drug trafficking offense or the illegal reentry.”

Vacated and Remanded.

10-1470 U.S. v. Lopez

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Hamilton, J.

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