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Sentence after revocation does not count

By: David Ziemer, [email protected]//March 9, 2011//

Sentence after revocation does not count

By: David Ziemer, [email protected]//March 9, 2011//

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When determining the severity of an immigrant’s prior drug convictions, sentencing courts should consider the sentence originally imposed at conviction, not how much time was imposed after revocation of probation.

The 7th Circuit on March 4 vacated (PDF) the sentence of a defendant convicted of illegal re-entry into the United States, because the district court based the sentencing guideline on the prison term the defendant received after his probation was revoked.

Cruz Lopez was convicted of a drug trafficking offense in Illinois state court in 2004. He was sentenced to 180 days in jail and 48 months of probation. In 2006, he was deported.

Cruz illegally re-entered the country, was arrested and his probation was revoked. The state court imposed a sentence of three years imprisonment.

Lopez was then indicted in federal court for illegal re-entry, and he pleaded guilty. He was sentenced to 74 months in prison, after the court calculated his guideline range based on the length of the sentence after revocation (70-87 months).

Lopez appealed, and the 7th Circuit vacated the sentence in an opinion by Judge David Hamilton.

Under U.S.S.G. 2L1.2, the base offense level for illegal re-entry is 8.

Subsection (b)(1) provides:

If the defendant previously was deported, or unlawfully remained in the United States, after:

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months … increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels.

The court concluded that only the original, shorter sentence should be used, and thus subsec. (b)(1)(B) applies, rather than (A).

The court explained, “The past tense ‘imposed’ indicates that the focus is on the sentence that was imposed before the deportation and re-entry. Here, when Lopez was deported, the sentence that had been imposed for his drug trafficking conviction was below the thirteen-month threshold of the guideline.”

The court added “The later imposition of a sentence exceeding thirteen months after the deportation and re-entry does not satisfy the temporal restriction of section 2L1.2(b)(1)(A)(i).”

The court thus remanded for resentencing using a lower guideline range (46-57 months).

Analysis

In light of the holding, attorneys representing immigrants in state criminal courts might consider asking for withheld sentences, rather than imposed and stayed sentences, when probation is an option and deportation is likely.

The sentence in this case might have been affirmed if, in the state drug case, the defendant had been given an imposed and stayed prison sentence, probation, and a short jail stint as a condition of probation.

In such a case, the prison sentence in excess of 13 months would have been technically “imposed,” even though it was stayed, and the longer guideline may have applied.

The comments to the guideline state, “The length of the sentence of imprisonment includes any term of imprisonment given upon revocation of probation, parole, or supervised release.”

In the case at bar, the court found this commentary irrelevant, because the additional time was not imposed until after the deportation and illegal re-entry.

The court concluded, “The temporal restriction of the guideline is clear. The application note does not speak to the question before us in this case or alter our interpretation of the guideline.”

But if a sentence was imposed and stayed at the original sentencing, it would have been imposed before the deportation and re-entry, so this “temporal restriction” might not apply, and the longer guideline range would govern the federal sentence.

So, it might seem that getting a withheld sentence is a good ideal. But, such a strategy could backfire.

In practice, when sentence is withheld, it is usually because the court does not consider the offense to be very aggravated. Then, when sentence is imposed after revocation of probation, an inordinately lengthy sentence is sometimes imposed, not because of the severity of the original offense, but because of the defendant’s conduct since then.

As the 7th Circuit noted, “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.”

The prison sentence imposed after revocation in state court could exceed any reduction in the federal sentence. Thus, what may seem to be a good strategy, in the event the client later re-enters the country illegally, could actually do more harm than good.

What the Court Held

Case: U.S. v. Cruz, No. 10-1470 (PDF)

Issue: Does a sentence imposed after an immigrant has re-entered the country, and then had probation revoked, count when calculating the guideline range for illegal re-entry under U.S.S.G. 2L1.2?

Holding: No. Where the sentence after revocation is not imposed until after the defendant has illegally re-entered the country, it does not count.

David Ziemer can be reached at [email protected].

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