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Archive | illegal reentry

Monday, December 21st, 2020

Second Circuit Affirms Guideline Sentence For Illegal Re-entry Based the Guideline Enhancement for A Felony Conviction After Reentry.

In United States v. Daniel Antonio Salas-Miranda, No. 20-734 (2d Cir. Dec. 18, 2020)(summary order), the Court of Appeals rejected an argument that the 24-month guideline sentence, imposed for illegal reentry in violation of 8 U.S.C. § 1326(a), was substantively unreasonable. The sentence was imposed to run consecutively to a 10-year state sentence imposed for a state crime committed after the defendant re-entered. The 24-month guideline sentence was based on a 10-level enhancement under U.S.S.G.  2L1.2(b)(3)(A) that applies where the defendant has been convicted of a felony committed after the illegal reentry and sentenced to five years or more. Salas-Miranda argued that this enhancement was arbitrary because it only applied where the defendant was convicted of the state offense before his sentencing for the re-entry and would not have applied if he been sentenced in federal court first. The Court rejected that argument on the ground that …

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Categories: illegal reentry, substantive unreasonableness

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Thursday, May 16th, 2019

Second Circuit: general statute not enough to prove acquired citizenship

Finding valid defenses to illegal reentry charges tends to be challenging. Today, the Second Circuit issued a lengthy summary order in United States v. Lewis that, unfortunately, won’t make it any easier.

Here’s what happened: Mr. Lewis was charged with illegally reentering the United States. The defense planned to argue that Mr. Lewis, who was born in Guyana, was actually a United States citizen because he had acquired citizenship from his father automatically at birth. His father and mother were unmarried, but a Guyanese law “legitimated” all children in Guyana born out of wedlock.

The question was: did this Guyanese law establish “legitimate paternity” for Mr. Lewis? The trial judge said no, prohibited the defense, and instructed the jury that, as a matter of law, Mr. Lewis had not established that he acquired United States citizenship. Unsurprisingly, Mr. Lewis was convicted. He was sentenced to 63 months of imprisonment.

Today, …

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Tuesday, December 12th, 2017

Second Circuit Vacates Above-Guidelines Illegal Reentry Sentence As Procedurally and Substantively Unreasonable

Today the Second Circuit issued an opinion vacating a 60-month illegal reentry sentence as both procedurally and substantively unreasonable. The opinion in United States v. Latchman Singh, No. 16-1111 (Kearse, Hall, Chin) (appeal from Forrest, J., SDNY), is available here. Judge Chin’s opinion touches on a number of recurring sentencing issues, and includes an important analysis of the distinction between presenting mitigating evidence and avoiding responsibility for one’s crimes.

Mr. Singh pleaded guilty to one count of illegal reentry after being removed following an aggravated felony conviction, see 8 U.S.C. § 1326(b). His record includes a number of convictions for non-violent offenses, several of which occurred more than a decade ago. The 15-21 Guidelines range for Mr. Singh’s sentence reflected a 3-level reduction for acceptance of responsibility. Prior to sentencing, he wrote a letter to the district court expressing remorse his actions and explaining the pressures that …

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Categories: acceptance of responsibility, illegal reentry, procedural reasonableness, sentencing, sentencing findings, substantive reasonableness

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Wednesday, April 12th, 2017

Sessions Announces “Renewed Commitment to Criminal Immigration Enforcement” and the End of the National Commission on Forensic Science

Attorney General Jeff Sessions issued this  statement regarding a “Renewed Commitment to Criminal Immigration Enforcement” yesterday.  It’s unclear how much it will change enforcement priorities in the ED and SDNY, but it does encourage the piling on of additional charges, such as aggravated identity theft and document fraud, in immigration cases.  If you get assigned to a case that seems unusual to you, meaning an immigration case that would not have been prosecuted under previous administrations or one that involves unusual ICE investigative or arrest tactics, please reach out to the Federal Defenders so we can keep track of developments in this area.

Earlier this week, Sessions announced the end of the National Commission on Forensic Science, an advisory panel of judges, lawyers, scientists and crime lab leaders.  One of the outstanding items the Commission was addressing was national standards for forensic testimony.  The official announcement is here .  The …

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Monday, August 29th, 2016

Second Circuit Updates – August 29, 2016

The Second Circuit issued summary affirmances in two criminal cases today.

In United States v. Jasmin, No. 15-2546, the Court affirmed the conviction of the former mayor of Spring Valley, New York, on mail fraud and extortion charges.  The Court held that the government’s reliance at trial on a mailing not specified in the indictment was not a constructive amendment or variance of the indictment.  The government did rely on a mailing that was listed in the indictment, and Jasmin had notice of the additional mailing more than a year before trial.  The Court found there was sufficient evidence to support both convictions.  In terms of the mail fraud count, the use of the mail was foreseeable to Jasmin.

With respect to the Hobbs Act claim, the Court found the evidence sufficient to support the conviction.  Part of the proof on the interstate commerce element involved Jasmin’s travel to …

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Categories: extortion, Hobbs Act, illegal reentry

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Saturday, April 2nd, 2011

PC World

United States v. Perez-Frias, No. 10-1401-cr (2d Cir. March 31, 2011) (Jacobs, Calabresi, Lohier, CJJ) (per curiam)

Pedro Ruben Perez-Frias appealed his 42-month, below-Guideline illegal reenty sentence, arguing that it was substantively unreasonable. The circuit affirmed.

His case presented a particularly unsympathetic set of facts. In 1995, Perez-Frias was convicted of a drug-related manslaughter. He was selling marijuana at the time, and told his friends that he was having trouble with a rival dealer. This inspired someone else to kill the rival. Perez-Frias received a 7-to-21-year state sentence, and served about 14 years before being paroled to immigration authorities, who immediately deported him. He returned to the United States in August of 2009 and, two months later, was arrested for possessing marijuana. Within a few months he was in federal custody facing an illegal reentry charge.

Perez-Frias’ primary argument at sentencing was that a Guideline sentence was greater than necessary …

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Categories: illegal reentry, substantive reasonableness, Uncategorized

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Saturday, May 1st, 2010

Collateral Damage

United States v. Cerna, No. 09-1170-cr (2d Cir. April 27, 2010) (Katzmann, Hall, CJJ, Rakoff, DJ)

Against the backdrop of the circuit’s ongoing concern over the “exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law,” here, the circuit reversed the district court’s denial of the defendant’s collateral challenge to the legality of his deportation.

Jose Cerna came to the United States from El Salvador when he was ten. He became a lawful permanent resident but, as a teenager, had several brushes with the law – two drug sale convictions when he was sixteen, a gun possession charge two years later, and another drug sale when he was twenty-one. While serving this last sentence, deportation proceedings were commenced against him.

After a hearing, an immigration judge found Cerna deportable, but also found him to be eligible for …

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Categories: collateral challenge, illegal reentry, Uncategorized

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Wednesday, April 9th, 2008

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it – although he elected not to do so – and the opinion does not say whether the judge’s belief was …

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Categories: fast-track disparity, illegal reentry, sentence, Uncategorized

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