“It has long been settled in this Circuit” that “national origin and naturalized status” cannot be “the basis for determining” a defendant’s sentence. United States v. Arslanouk, 853 F. App’x 714, 720 (2d Cir. 2021) (quoting United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007)). The Circuit is thus “compelled” to order resentencing where a district court’s reference to “deter[ring] others sharing that national origin” “create[s] an improper appearance that a defendant’s national origin or immigration status might be driving the choice of sentence.” Id. at 721 (ordering resentencing where district court said sentence would send a “message” that “Russian organized crime that seeks to come to the shores of the United States … will be dealt with, with the power of our criminal justice system”).
In United States v. Vasquez-Drew, No. 20-2195-cr, the district court (Cote, J.) sentenced the defendant, a Bolivian national, to 10 years in prison for conspiring to import drugs. The Probation Department had recommended only 5 years. But the government urged the court to “send a strong message” to demonstrate that those who “sell such poison from afar” will face “significant consequences” in the United States.
The district court obliged, explaining that it was imposing a “very long sentence” in part for “general deterrence.” Per the court: “It is important that people in Bolivia understand the kind of sentences that are potentially imposed here from engagement in activity to send cocaine into America.”
On appeal, Vasquez-Drew moved to vacate his sentence in light of this reference to sending a message to all people of his same national origin (“people in Bolivia”). He argued that under clear Circuit precedent, resentencing was necessary to avoid the appearance that his national origin impacted his sentence.
The government agreed. It conceded error in the case and moved for Vasquez-Drew to be resentenced.
But interestingly, the Circuit declined to order resentencing. Instead, the Circuit appointed a law firm partner as amicus to defend the sentence abandoned by the government.
Amicus counsel, Tadhg Dooley of Wiggin and Dana LLP, submitted a brief arguing that the district court’s statement that it wished to send a message to “people in Bolivia,” in context, would not suggest to any “reasonable observer” that the defendant’s national origin impermissibly factored into his sentence. Alternatively, Dooley argues that, because the United States asserts that Bolivia has lax drug enforcement, it is acceptable to impose harsher sentences on people in Bolivia who deal drugs: “it was perfectly acceptable for Judge Cote to consider the need to deter those individuals in Bolivia who, like Vasquez-Drew, were exploiting the absence of meaningful drug-enforcement.”
Bolivia also submitted an amicus brief, in light of its interest that “Bolivian citizens are afforded fair and equal treatment when they interact with the legal systems of foreign governments.” Bolivia argues that affirming the defendant’s sentence would conflict with this country’s various commitments to fairness and equality; undermine confidence in American courts, “especially given documented racial disparities in the United States legal system”; and invite judges to sentence “based on generalizations about foreign countries rather than on reliable, substantiated facts.”
If you want to check out the argument in this case, it is scheduled for Tuesday, February 28, 2023 at 2:00 PM before the Second Circuit.
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