The U.S. Sentencing Commission has revised its Guidelines to include to provisions relating to immigrants with criminal convictions. The Federal Public Defender Office of the Southern District of Texas provides a summary of the amendments.
Glickman Turley attorneys represent immigrants in all immigrantion matters and matters of criminal defense in state and federal courts in Massachusetts, New Jersey and Pennsylvania. We represent immigrants in deportation and removal proceedings on applications for cancellation of removal, asylum, withholding of removal, protection under the United Nations Convention Against Torture, adjustment of status, voluntary departure and other matters.
Please contact us if you would like to discuss representation on immigration or criminal matters.
Supervised Release“The 2011 amendments encourage more discretion in the imposition of supervised release where a term is not statutorily required. The Commission discourages imposition of supervised release for non-citizen defendants who will be deported. See USSG § 5D1.1(c) (Nov. 1, 2011). This revision is designed to “help courts and probation offices focus limited supervision resources on offenders who need supervision.” Id. (citing Johnson v. United States, 529 U.S. 694, 709 (2000)). Consideration of the factors set forth in 18 U.S.C. § 3553(a) supports elimination of a supervised release term for a non-citizen. Supervised release does not benefit a non-citizen subject to deportation because he cannot be supervised. Nor is it necessary as a deterrent to an alien already facing potential twenty-year sentence should he return illegally. See 8 U.S.C. § 1326(b)(2). The 2011 amendments also lower the advisory minimum term of supervised release to two years for Class A and B felonies and one year for Class C and D felonies. USSG § 5D1.2(a) (Nov. 1, 2011). In addition to the statutory factors set forth in 18 U.S.C. § 3583, the Commission recommends that the court consider a defendant’s criminal history and substance abuse in deciding whether and for how long to impose supervised release. USSG § 5D1.1, comment. (n.3). The Commission also encourages early termination where appropriate. USSG § 5D1.2, comment. (n.5) (Nov. 1, 2011).”
Illegal Reentry – Remote Convictions“In contrast to other Guideline provisions, an alien’s convictions are included in calculating the offense level for illegal reentry under USSG § 2L1.2 regardless of whether they count for criminal history purposes. In United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), the Ninth Circuit held that the age of a defendant’s prior conviction could be the basis for a sentence below the Guidelines. The Commission has taken to heart the Ninth Circuit’s reasoning in Amezcua-Vasquez. The 2011 amendments provide that a sixteen-level enhancement that does not count for criminal history should receive only twelve levels, while a remote twelve-level conviction should receive eight levels. USSG § 2L1.2(b)(1)(A), (B) (Nov. 1, 2011). The ommission emphasizes that with the exception of this amendment, convictions count in determining the offense level regardless of whether they r receive criminal history points. USSG § 2L1.2, comment. (n.1(C)) (Nov. 1, 2011). The Sentencing Commission encourages departure where the offense level “substantially overstates or understates the seriousness of the
prior conviction.” USSG § 2L1.2, comment. (n.7). For example, an upward departure is authorized where a defendant is convicted of simple possession or transportation but the quantity involved exceeds a quantity consistent with personal use. Downward departure is encouraged where the defendant receives a sixteen-level
enhancement for a conviction that does not meet the definition of aggravated felony. Id. The 2011 amendments add an upward departure based on the extent or seriousness of the conduct underlying the offense in cases where the new reduced offense level for remote convictions applies. USSG § 2L1.2, comment. (n.7) (Nov. 1, 2011).”
