nat ional IMMIGRATION p r o j e c t of the National Lawyers Guild …

nat ional
IMMIGRATION
p r o j e c t
of the National Lawyers Guild
                   =

14 Beacon Street,               March 29, 2007
Ste. 602
Boston, MA 02108                Honorable Ricardo Hinojosa
Phone 617 227 9727              Chair
Fax 617 227 5495                United States Sentencing Commission
                                One Columbus Circle, N.E.
   Board of Directors
                                Suite 2-500, South Lobby
   Rogelio Nuñez, Chair
     Harlingen, TX
                                Washington, D.C. 20002-8002
   Susan Alva
     Los Angeles, CA                    Re: Comments on Proposed Amendments Relating to Immigration
   Robin Bronen
     Anchorage, AK              Dear Judge Hinojosa:
   Susana De León
     Minneapolis, MN
   Rosemary Esparza                    With this letter, the National Immigration Project of the National
     Venice, CA                 Lawyers Guild (National Immigration Project) and the National Council of
   Barbara Hines                La Raza (NCLR) provides comments to the proposed amendments relating
     Austin, TX
                                to immigration that were published on January 30, 2007.
   Linton Joaquin
     Los Angeles, CA
   Christina Kleiser            I.      General Concerns
     Nashville, TN
   Michael Maggio                       1. Proposed options are inconsistent with pending legislation
     Washington, DC
   Chinwe Obianwu
     Atlanta, GA                        Without any apparent justification, the proposed amendments
   Sonia Parras-Konrad          would substantially increase the potential prison sentences for noncitizens
     Des Moines, IA             convicted of illegally reentering the United States. There is no new
   Judy Rabinovitz              legislation, or authoritative research to justify these harsher amendments.
     New York, NY
   Rebecca Sharpless
                                Moreover, all of the published options are out of sync with current
     Miami, FL                  legislative proposals. The Sentencing Commission should refrain from
   Marc Van Der Hout            publishing a new Guideline, which may well be out of date very soon.
     San Francisco, CA

   Staff
                                         Legislation pending in the House (H.R. 1645) and the Senate (S.
                                2611) provides maximum statutory sentences of 20, 15, 10 and 2 years for
   Ellen Kemp
     Coordinator/Legal Worker   illegal re-entry. Under section 236 of H.R. 1645 and section 207 of S.
   Dan Kesselbrenner            2611, a defendant cannot receive a 20-year sentence unless she or he has:
    Director
   Toy Lim                           -- a felony conviction for which a court sentenced the defendant to at
    Office Manager                   least sixty months,
   Ana Manigat                       -- 3 felony convictions, or
    Administrative Assistant         -- a conviction murder, rape, kidnapping, a felony relating to slavery or
   Paromita Shah                     peonage, or a felony relating to terrorism.
    Associate Director
Honorable Ricardo H. Hinojosa
United States Sentencing Commission
March 29, 2007
Page 2


       2.     Sentencing Commission should republish notice to allow
              meaningful opportunity for public comment

         Section 994(x) of Title 28 U.S.C.A. subjects the United States Sentencing
Commission to the notice and comment requirements of the Administrative Procedures
Act. 5 U.S.C.A. § 553. Under 5 U.S.C.A. § 553, subject to exceptions that do not apply
in this instance, an agency must publish proposed rules in the Federal Register and give
the public a meaningful opportunity to comment. The Sentencing Commission is
considering an additional Option 7 for U.S.S.G. § 2L1.2 that the Commission did not
publish in the Federal Register. The Commission did provide the National Immigration
Project and NCLR with a copy of Option 7, for which we are grateful. However, the
good graces and the helpfulness of the Commission staff cannot compensate for a failure
to publish Option 7 in the Federal Register. Principles of good government and the
obligations under 5 U.S.C.A § 553 made binding on the Sentencing Commission by 28
U.S.C.A. § 994(x) require that the Commission not amend 2L1.2 until it gives the entire
public notice and the opportunity to comment on Option 7 and any other amendments
that the Commission is considering. The National Immigration Project and NCLR are
not offering comment on Option 7 because to do so would be inconsistent with the letter
and spirit of 28 U.S.C.A. § 994(x) and with principles of good government.

       3.     Existing and proposed penalties are inappropriate for seriousness of
              the offense

        The proposed and existing penalties for unlawfully entering and remaining in the
United States are disproportionate to the seriousness of the offense. Other federal
offenses that enhance a sentence based on a defendant's criminal record are much less
severe than the proposed options under U.S.S.G. § 2L1.2. For example, a felon in
possession of a firearm receives an enhancement of six levels for having a prior
conviction for a crime of violence, U.S.S.G. § 2K2.1(a)(4)(A), as opposed to an eight or
sixteen level increase under Options 1-4 of U.S.S.G § 2L1.2.

         The disproportionately harsh consequences are especially problematic because the
definition of aggravated felony under 8 U.S.C. § 1101(a)(43) is so broad and overarching
that it includes offenses that are neither aggravated nor felonies. The definition of
aggravated felony includes federal and state nonviolent offenses and individuals who
serve no prison time whatsoever. See, e.g., United States v. Pacheco, 225 F.3d 148 (2d
Cir. 2000) (treating as an aggravated felony a conviction for misdemeanor petty theft
with a one-year suspended sentence). Therefore, defendants will be included under these
harsh Guidelines who are not guilty of serious criminal offenses.




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Honorable Ricardo H. Hinojosa
United States Sentencing Commission
March 29, 2007
Page 3


       4.      Sentence served is a more reliable indicator of seriousness of predicate
               offense than sentence imposed

         If the Sentencing Commission were to use the sentence a defendant served rather
the sentence a court imposed, it would be better able to sentence harshly those defendants
who warrant more serious sentences. Using the time a defendant served is more
consistent with the overall sentencing purposes of 18 U.S.C.A. § 3553(a)(2) than using
sentence imposed. A common thread among the great variety of state sentencing schemes
is that the time a defendant actually serves is the best measure of the seriousness of her or
his offense. As a result, using the sentence served would reduce the uneven impact that
flows from the variety of state sentencing schemes and promote a more uniform federal
treatment of defendants charged with illegal reentry. This approach also would be
consistent with the Supreme Court's view in Lopez v. Gonzales, 127 S.Ct. 626 (2006) that
Congress did not want a state's label to decide a federal concern.

II.    General Concerns Regarding Commentary and Application Notes

        The Commentary under the United States Sentencing Guidelines has the force of
law unless contrary to the Constitution, a statute, or inconsistent with the Guideline that it
interprets. Stinson v. United States, 508 U.S. 36 (1993). As a result, the National
Immigration Project and NCLR note its concern regarding the proposed Commentary to
U.S.S.G. § 2L1.2, because it includes material, which does not deserve the force of law,
and thus should not be included in the Commentary.

       1.      Provisions of Federal Juvenile Delinquency Act should govern
               treatment of persons under 18

        The proposed Commentary to all six options to U.S.S.G. includes offenses
committed by a person under 18 if the law of the jurisdiction treated the defendant as an
adult. The Sentencing Commission should heed the reasoning behind the Supreme
Court's recent decision in Lopez v. Gonzales, 127 S.Ct. 625 (2006), and not make an
enhancement dependent on the vagaries of local law. The National Immigration Project
and NCLR suggest that the test be whether the defendant would have faced mandatory
treatment as an adult under the Federal Juvenile Delinquency Act. Using a federal test
would avoid disparities based on state law and promote uniformity.




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Honorable Ricardo H. Hinojosa
United States Sentencing Commission
March 29, 2007
Page 4


       2.      Application notes should include downward departure
               considerations

        The proposed options lack provisions that take into account the motivation for a
substantial number of reentering noncitizens in returning to the United States, including
such factors as: (1) extended length of residence in the United States, (2) the presence of
family members in the United States who need them, and (3) the fear of persecution in
their home country. Many reentering noncitizens are not being motivated by a desire to
commit new crimes in the United States. Courts have recognized that a reduction in
sentence is appropriate for defendants who are culturally assimilated or who return
because of family medical needs. See, e.g, United States v. Rodriguez-Montelongo, 263
F.3d 429 (5th Cir. 2001) (recognizing availability of downward departure for cultural
assimilation); United States v. Lipman, 133 F.3d 726 (9th Cir. 1998) (same); United
States v. Singh, 224 F. Supp.2d 962 (E.D. Pa. 2002) (granting downward departure for
defendant who reentered to visit his dying mother).

III.   Specific Comments to Proposed Options

       1.      Continued use of categorical approach

       Options 1-4 would still require the categorical approach. The Supreme Court
created the categorical approach in connection with the Armed Career Criminal Act. In
2007, the Supreme Court endorsed this approach to establish whether an offense is an
aggravated felony. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815 (2007). The term
"aggravated felony" means the same thing whether used in the civil or criminal contexts.
See Leocal v. Ashcroft, 543 U.S. 1, 11 fn. 8 (2004); Lopez v. Gonzales, 127 S.Ct. 626
(2006). According to the Fifth Circuit, "Lopez ineluctably applies with equal force to
immigration and criminal cases." U.S. v. Estrada-Mendoza, 475 F.3d 258, 261 (5th Cir.
2007).

        The synopsis to the immigration proposal raises the concern that the "lack of
documentation" makes difficult implementation of the existing 2L1.2. 72 FR 4372, 4393
(Jan. 30, 2007). While it may make sense to switch from a Guideline that is based on
proving the existence of an aggravated felony to a Guideline based on the time a
defendant served for her or his predicate offense, the lack of documentation is not a good
reason on which to base a switch.




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Honorable Ricardo H. Hinojosa
United States Sentencing Commission
March 29, 2007
Page 5


In the United States' criminal justice system, one price of having the rule of law
paramount is that the lack of evidence sometimes means the truly guilty go unpunished.
The Supreme Court has historically emphasized that justice is best served by promoting
respect for the rule of law even if it is more difficult for prosecutors or law enforcement
officials to obtain a confession, conviction, or an appropriate sentence. See, e.g., Miranda
v. Arizona, 384 U.S. 436 (1966) (preventing interrogation of arrested person until right to
counsel waived); Batson v. Kentucky, 476 U.S. 79 (1986) (forbidding race-based
preemptory challenges) Blakely v. Washington, 542 U.S. 296 (2004) (requiring proof
beyond a reasonable doubt of any fact, other than recidivism, that increases a defendant's
punishment). That the categorical approach is the Court's preferred method should be a
sufficient response to the government's concerns that the proof requirement to establish
an enhancement is too exacting.

       2.      Option five is fundamentally unfair

         Section 1326(b) of Title 8 U.S.C.A adds punishment for having an aggravated
felony or three misdemeanor convictions involving crimes against the person or drugs or
both or a felony other than an aggravated felony. The Supreme Court has repeatedly put
the burden on the government to prove an enhancement. See Shepard v. United States,
544 U.S. 13 (2005) and Taylor v. United States, 495 U.S. 575 (1990). In Gonzales v.
Duenas-Alvarez, 127 S.Ct. 815 (2007), the Supreme Court applied the Shepard and
Taylor categorical approach to whether a noncitizen was deportable for an aggravated
felony. In Leocal v. Ashcroft, 543 U.S. 1, 11 fn. 8 (2004), the Court made clear that the
test for whether an offense is an aggravated felony is the same, regardless of whether the
term is interpreted in the context of a civil removal proceeding or a criminal sentence
enhancement:

               Although here we deal with § 16 in the deportation context,
               § 16 is a criminal statute, and it has both criminal and
               noncriminal applications. Because we must interpret the
               statute consistently, whether we encounter its application in
               a criminal or noncriminal context, the rule of lenity applies.

         In Lopez v. Gonzales, 127 S.Ct. 625 (2006), the Supreme Court abrogated both
illegal reentry cases and civil immigration cases. Taken together, Leocal, Duenas-
Alvarez, and Lopez mean that the Supreme Court intends for principles in Shepard and
Taylor to apply to sentencing enhancements under 2L1.2. Since Option 5 puts the
burden on the defendant to get a lower sentence, it is inconsistent with Supreme Court




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Honorable Ricardo H. Hinojosa
United States Sentencing Commission
March 29, 2007
Page 6

law. In addition, it is inconsistent with notions of fundamental fairness to put the burden
on the defendant, who is the least able to meet the burden.


IV.     Issue for Comment

       The United States Sentencing Commission specifically seeks input regarding
what changes, if any, the Commission should make to U.S.S.G. § 2L1.2 in light of Lopez
v. Gonzales, 126 S.Ct. 625 (2006). The National Immigration Project and NCLR urges
the Sentencing Commission to treat differently a defendant who has an aggravated felony
based a state misdemeanor. For purposes of the existing 2L1.2 or proposed Options 1-4,
which maintain an eight level enhancement for any aggravated felony, the Commission
should include in the Commentary an exception for a defendant whose aggravated felony
conviction is a state misdemeanor.

        In Lopez, the Court acknowledged that defendants convicted of a misdemeanor
under state law might have an aggravated felony for purposes of 8 U.S.C.A. §
1101(a)(43)(B). Lopez v. Gonzales, 126 S.Ct. 625, 633 (2006). In a post-Lopez decision,
the Southern District Court for the District of Texas has held that a state misdemeanor
can constitute an aggravated felony. U.S. v. Castro-Coello et al, 2007 WL 397496 (S.D.
Tex. Feb. 6, 2007) (treating second possession conviction as a recidivist offense despite
lack of equivalent notice to that provided under 21 U.S.C.A. § 851). An eight level
increase for someone with a misdemeanor prior as the predicate offense is
disproportionate to the seriousness of the offense.

        Under principles of "fair notice," this exception should apply to all misdemeanor
aggravated felony convictions, not just those under Lopez. Should the Commission
decide not to exclude misdemeanor offenses completely from 2L1.2(b), then the National
Immigration Project and NCLR suggests that the Commission provide a reduction of six
levels for any misdemeanor that is treated as an aggravated felony.

       Thank you for considering our views. We are grateful for the opportunity to
submit comments.

                                      Sincerely,


       Dan Kesselbrenner                                     Janet Murguia
       Executive Director                                    President and CEO
       National Immigration Project                          National Council of La Raza




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