The following are notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments; as they relate to non-citizens in federal court.
The Commission requests comment on when, if at all, the collateral consequences of a defendant’s status as a non-citizen may warrant a downward departure. There are differences among the circuits on this issue. Compare, e.g., United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993) (holding that none of the following collateral consequences are a basis for departure: (1) The fact that an alien is not eligible to be imprisoned in a lower-security facility or to participate in certain prison programs; (2) the fact that an alien will face deportation upon release from prison; and (3) the fact that an alien, upon release from prison, will be civilly detained until deportation), with United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (“[A] downward departure may be appropriate where the defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence.”).
The circuits appear to be in agreement, however, that the defendant’s status as a non-citizen is never a proper basis for departure when the defendant is sentenced under the illegal reentry guideline, Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States). See, e.g., United States v. Martinez-Carillo, 250 F.3d 1101, 1107 (7th Cir. 2001); United States v. Garay, 235 F.3d 230, 234 (5th Cir. 2000).
Should the Commission amend the guidelines to address when, if at all, a downward departure may be warranted on the basis of such collateral consequences? If so, how?
5. The Commission requests comment on when, if at all, a downward departure may be appropriate in an illegal reentry case sentenced under Sec. 2L1.2 on the basis of “cultural assimilation”, that is, the defendant’s cultural ties to the United States. Several circuits have held that such a departure may be warranted. See, e.g., United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998); United States v. Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998). Other circuits, such as the First and Tenth Circuits, have declined to rule on whether such a departure may be warranted. See, e.g., United States v. Melendez-Torres, 420 F.3d 45, 51 (1st Cir. 2005); United States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).
Should the Commission amend the guidelines to address when, if at all, a downward departure may be warranted in an illegal reentry case on the basis of “cultural assimilation”? If so, how?