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 “this potential discrepancy” did not make the sentence shockingly high or manifestly unjust. The Court noted that the purpose of the enhancement is to capture criminal conduct committed after illegal reentry, and that if the defendant had been sentenced first in federal court, a guideline sentence would have failed to capture that full extent of his criminal conduct. The district court was not compelled to lower the defendant’s sentence to account for that scenario. The Court noted that, unlike the child pornography Guideline enhancements, there was no indication that the Sentencing Commission had departed from it empirical approach when drafting this enhancement.
The Court also rejected the argument, on the ground that it was not made to the district court, that the sentence should not have been consecutive because the state sentence likely accounted for the fact that Salas-Miranda had reentered the country illegally.