PC World

United States v. Perez-Frias, No. 10-1401-cr (2d Cir. March 31, 2011) (Jacobs, Calabresi, Lohier, CJJ) (per curiam)

Pedro Ruben Perez-Frias appealed his 42-month, below-Guideline illegal reenty sentence, arguing that it was substantively unreasonable. The circuit affirmed.

His case presented a particularly unsympathetic set of facts. In 1995, Perez-Frias was convicted of a drug-related manslaughter. He was selling marijuana at the time, and told his friends that he was having trouble with a rival dealer. This inspired someone else to kill the rival. Perez-Frias received a 7-to-21-year state sentence, and served about 14 years before being paroled to immigration authorities, who immediately deported him. He returned to the United States in August of 2009 and, two months later, was arrested for possessing marijuana. Within a few months he was in federal custody facing an illegal reentry charge.

Perez-Frias’ primary argument at sentencing was that a Guideline sentence was greater than necessary to satisfy § 3553(a). The sentencing judge disagreed, but granted his request for a four-month reduction to account for the uncredited time that Perez-Frias was in federal custody on a writ. The Guideline range was 46 to 57 months’ imprisonment, and the court imposed a 42-month term.

The circuit began by noting that it is “difficult to find that a below-Guidelines sentence is unreasonable,” although, in context, it seems that the court will find this difficulty only when assessing a defendant’s claim that the sentence is unreasonably high, and not when assessing a prosecutor’s claim that a below-Guideline sentence is unreasonably low. Here, according to the circuit, the district court’s assessment of the nature and circumstances of the offense and the defendant’s history and characteristics supported the sentence it chose.

Perez-Frias challenged the 16-level enhancement that he received for the manslaughter conviction as one not supported by “specific empirical data.” This is a common argument made in illegal reentry cases, and here the court pretty much shot it down. There is “no such flaw in the reentry Guideline.” Rather, the 16-level enhancement was “based on the Commission’s own determination that these increased offense levels are appropriate to reflect the serious nature of these offenses.”

Relatedly, Perez-Frias argued that the 16-level enhancement was unduly harsh because the illegal reentry itself is a non-violent act. The court rejected this, too. The guideline is not unreasonable merely because it produces an offense level that is equal to or greater than that of certain violent crimes.

Finally, Perez-Frias deployed another commonly raised argument: that the lower sentences imposed in “fast-track” districts showed that non-fast-track sentences are longer than necessary to achieve the statutory goals. The circuit disagreed because “defendants in fast-track districts are not similarly situated to defendants in non-fast-track districts.”

Comment

For those with a lot invested in illegal reentry cases - like federal defenders - this is a disturbing opinion, particularly on the issue of the empirical basis for the 16-level bump.

There has been a lot written, much of it quite compelling, that establishes that the Commission’s choice of 16-level bump was, in essence, random, and was not based on any systematic empirical study. And the quoted material that the court relies on here to find otherwise is not really an answer. That material comes from the Commission’s justification for the enhancement, and establishes only that the Commission believed that illegal reentrants with serious past convictions deserved a higher offense level. But it does nothing to explain why the Commission selected 16 levels, and not some lower number, and certain does not in any way show that the number, or even the concern behind it, was the product of a real empirical - or indeed any - investigation.

Others have observed that the 16-level bump seems to have been intended to coordinate with the statutory maximum of twenty years. But under Kimbrough that is an additional reason to give less deference to a determination by the Sentencing Commission. This opinion does not address that aspect of the enhancement at all.

Finally, as for fast-track, there is an issue that the Circuit has had before it many times but has not yet resolved: the claim that the disparity between the sentences imposed in fast-track districts and non-fast track districts is “unwarranted” under 18 U.S.C. § 3553(a)(6). Although the government will likely trot out this case in answer to that argument, in fact, this case does not shut that particular door. Its holding that the fast-track disparity does not render non-fast-track sentences longer than necessary is not a holding that such disparities can never be “unwarranted.”

Collateral Damage

United States v. Cerna, No. 09-1170-cr (2d Cir. April 27, 2010) (Katzmann, Hall, CJJ, Rakoff, DJ)

Against the backdrop of the circuit’s ongoing concern over the “exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law,” here, the circuit reversed the district court’s denial of the defendant’s collateral challenge to the legality of his deportation.

Jose Cerna came to the United States from El Salvador when he was ten. He became a lawful permanent resident but, as a teenager, had several brushes with the law - two drug sale convictions when he was sixteen, a gun possession charge two years later, and another drug sale when he was twenty-one. While serving this last sentence, deportation proceedings were commenced against him.

After a hearing, an immigration judge found Cerna deportable, but also found him to be eligible for 212(c) relief. Cerna was represented by counsel and the attorney had forty-five days to file the application but never did so. After the 212(c) deadline passed, the judge issued a deportation order. That order, along with an advice of the right to appeal to the BIA was sent to Cerna’s counsel with a “cc” to Cerna at a New York State correctional facility. Cerna’s attorney took no further action on the case and about one year later Cerna was deported to El Salvador.

Cerna was found back in the United Sates in late 2000, charged with illegal reentry in 2004, and arrested on that charge in 2007. He then moved to dismiss under 8 U.S.C. § 1326(d), which authorizes a collateral challenge to the deportation underlying an illegal reentry charge.

This section requires that the defendant (1) exhaust his administrative remedies in connection with the deportation, (2) establish that the proceedings improperly deprived him of the opportunity for judicial review and that (3) the deportation was fundamentally unfair. As to the first two prongs, Cerna argued that his attorney’s failure either to file the 212(c) application or to tell him that he had not was ineffective assistance of counsel that both excused his failure to exhaust and deprived him of judicial review. Cerna’s motion included a declaration explaining that he had no reason to believe that his attorney would not apply for 212(c) relief, did not learn that the attorney had not done so until he was deported, and never received the written notice of the right to appeal.

Despite these assertions, the district court denied the motion. It held that Cerna “knowingly and intelligently waived his right to any administrative remedies” by taking no action to contest the deportation during the period between the order and his actual removal from the country. The court also held that the deportation was not fundamentally unfair because Cerna’s criminal record made it unlikely that he would have been granted 212(c) relief in any event.

On appeal, the circuit first concluded that the district court’s finding that Cerna knowingly and voluntarily waived his administrative remedies was clear error. The basic problem was the district court’s failure to resolve the factual contradiction before it: the notice of the right to appeal the deportation was apparently “cc”’d to Cerna, but he asserted that he never received it. Perhaps the court discredited the assertion, but it “offered no explicit statement to that effect and no explanation of why it did not find Cerna to be credible.” Nor could the mere passage of time serve as the basis for a finding of a valid waiver since, during this period, Cerna believed that his attorney was fighting the deportation. “We decline to hold that an incarcerated alien whose lawyer has stated that he would file an application for relief from deportation has an obligation to check up on the lawyer to confirm that the application has been filed or risk waiving his right to appeal.” The court thus agreed with Cerna that his counsel’s ineffectiveness excused his failure to exhaust his administrative remedies.

As for the judicial review prong, the court merely applied existing precedent holding that ineffective assistance of immigration counsel can result in the deprivation of judicial review of a deportation.

Finally, the court agreed that the district court’s conclusion that Cerna was unlikely to have received 212(c) relief was unsound. The question was “whether Cerna had a reasonable probability of receiving” it and the circuit’s prior decisions have found that probability in cases no worse than Cerna’s.

Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it - although he elected not to do so - and the opinion does not say whether the judge's belief was correct or incorrect.

The opinion does, however, hold that fast-track sentences in other jurisdictions do not “require” a lower sentence in non-fast-track districts under the parsimony clause. “[S]entences in fast-track districts cannot be compared with sentences in non-fast-track-districts in order to demonstrate that the latter are longer than necessary [because] the two are not directly comparable.”

Comment: This unfortunate decision actually creates more questions than it answers. We still do not know for sure whether a court can consider the fast-track argument. And now, because of the way this opinion is written, we also do not know for sure whether a court can consider the parsimony argument. Does this opinion mean that district courts are not “require[d]” to consider fast-track sentences under the parsimony clause, or that they cannot? It can be read either way.