Section 2L1.2 of the federal sentencing guidelines covers illegal reentry into the United States. The guideline provides for a whopping sixteen-level enhancement for a prior drug-trafficking conviction for which the sentence imposed exceeded thirteen months in prison. It is not clear, though, what to do about a drug-trafficking conviction for which there was an initial sentence below the thirteen-month threshold and then a deportation, reentry, and revocation of probation resulting in a sentence beyond the threshold. In such circumstances, the Fifth Circuit has ruled that the enhancement does apply, while the Second Circuit has decided the reverse. Yesterday, the Seventh Circuit joined with the Fifth in United States v. Lopez (No. 10-1470). The court relied on the use of the past tense in the guideline: The guideline requires that a defendant's sentence of over thirteen months be imposed before the defendant's deportation. "If the defendant previously was deported . . . after-a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months. . . ." U.S.S.G. § 2L1.2(b)(1)(A)(i). The past tense "imposed" indicates that the focus is on the sentence that was imposed before the deportation and reentry. The court also relied on "the purpose behind the enhancement and the larger goal of consistent application of the Sentencing Guidelines": Defendants who reenter the country illegally after having committed more serious drug traf- ficking crimes should be punished more severely than defendants who reenter the country illegally after having committed less serious drug trafficking crimes. The Guidelines use the length of the sentence as a rough measure of the seriousness of the underlying drug trafficking crime and the seriousness of the new crime of illegal reentry. Probation revocation sentences imposed after a defendant has been deported tell us little about the seriousness of either the prior drug trafficking crime or the new crime of illegal entry. The reasoning and outcome seem sound enough, but I must say I always find it a little dissonant to read interpretations of guidelines that ascribe particular weights to particular prior state sentences in light of federal uniformity values, when there is no reason to believe that state sentences have any uniformity to them. It's not clear to me why we should care that Cruz gets the same treatment as other drug offenders who received less than thirteen months in state court, and more lenient treatment than drug offenders who received more than thirteen months, if the underlying drug sentences were essentially arbitrary.
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