Sentencing for Reentry after Deportation

By Dan Cadman on April 27, 2016

I've been blogging a lot recently about sentencing and incarceration in criminal cases, in the context of pending legislation that both chambers of Congress are contemplating. The bills would permit reduced sentences for many offenders, including aliens who smuggle narcotics by land or sea across our international borders. It is legislation that I dislike, as do many current and former prosecutors and law enforcement officers.

But here are two more items that have come to my attention that touch on a different aspect of sentences imposed on aliens. They have nothing to do with the pending legislation, but rather focus on the crime of illegal reentry after removal (deportation; see 8 U.S.C. Sec. 1326).

First, though, a word about that federal felony offense: Migrant advocates would have you believe that it is victimless, and that offenders should go unpunished, as they largely do for the misdemeanor offense of illegally crossing the border the first time, in the interests of "family unity". This airbrushes the hard facts.

Statistics in recent years have shown that the number of aliens who reenter the United States after having been formally deported has risen. According to those statistics, roughly one out of every four aliens apprehended, both at the border and in the interior, is a reentrant-after-removal. The figure is symptomatic of exactly how porous our border remains, notwithstanding pronouncements to the contrary. But there is more to it than that.

The president and his cabinet would have us believe that they came up with the brilliant notion of prioritizing enforcement efforts on criminals. They have done so in order to justify taking no action against hundreds of thousands of other illegal aliens, and in fact bestowing work permits and documents evidencing "lawful presence" upon them. That is absurd. Finding, arresting, and deporting criminals was, and always has been, a priority of federal immigration authorities, who managed to do it without a) finding the need to accord "lawful status" to other lawbreakers; or b) undermining the effort to identify criminals by pushing spurious sentencing reforms that in fact let thousands of alien felons walk free.

Because taking custody of, and removing, alien criminals has always been a priority, the reality is that many of the individuals caught after reentering the United States are felons and ex-cons who were deported after serving their jail sentences; they are not always simply family men seeking reunification with wives and children, or hard workers only looking for decent jobs. Now, for those two items I mentioned:

First, the Supreme Court ruled on April 20, in the case of an alien sentenced to 77 months in prison for having reentered after deportation, that the sentence was unlawful and that he was entitled to a resentencing hearing. Although 77 months (almost 6.5 years) in prison may seem like a long sentence, it was handed down on the basis of federal sentencing guidelines governing aliens, such as this individual, who were deported as aggravated felons and then returned unlawfully. Though analysis established that the 77 months proved to be within the upper end of the guidelines if they had been assessed correctly, they were not. The Court held that despite the alien and his counsel having initially accepted the sentence as applied, "the court of appeals [which rejected the appeal] should exercise its discretion to correct the forfeited error if the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" (Citations omitted.)

This is a highly technical decision based purely on insistence that the federal sentencing guidelines be calculated and applied correctly, even when an erroneous outcome might result in a sentence that still falls within the ceiling and floor of accurate calculations. It is unlikely to affect many cases and is simply a warning shot across the bows of sentencing courts that they must be attentive to the complexities of the sentencing guidelines. The case does, however, illustrate the point I made earlier about the nexus between illegal reentry and aliens deported for serious crimes. It also leads us directly to the second item.

The U.S. Sentencing Commission has announced a revision of its sentencing guidelines in cases involving aliens convicted of the crime of reentry after deportation. Ironically, the revisions, which modify the guidelines as they apply to alien felons, were announced on April 15, just five days prior to the Supreme Court's decision. The revisions provide for upward enhancements to sentences imposed on aliens who reenter after having committed serious crimes, as well as aliens convicted of smuggling unaccompanied minors or who sexually abuse the persons they are smuggling.

Chief Judge Patti Saris, who chairs the sentencing commission, is quoted as saying about the enhancements: "The Commission was concerned by evidence that 48% of illegally returning offenders were convicted of at least one criminal offense, other than illegal reentry, after their first deportation. Overall, immigrants convicted of illegal reentry have reentered the country an average of 3.2 times. However, the base offense level will remain the same as we also understand that there are many low level offenders who return to the United States for reasons related to family or work as well as reasons relating to conditions in their home country."

So there you have it, neatly consolidated:

  • Approximately one-fourth of all aliens apprehended have been deported previously;

  • Nearly half of those who were deported for crimes, and who reenter illegally, go on to commit another non-immigration related criminal offense after they reenter; and

  • On average, aliens convicted for the federal reentry offense have reentered the United States illegally more than three times.

Anyone still buying into this administration's fib that it has made our borders secure or the fib of open-borders groups that illegal reentry is a benign offense?