Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.
The third amendment to the Sentencing Guidelines addresses judges’ discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.
The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:
• Resided continuously in the United States from childhood;
• Illegally re-entered or stayed in the U.S. because of cultural ties from that childhood; and
• A departure is not likely to increase the risk to the public from further crimes of the defendant.
The sentencing court is directed to consider the following factors:
“(1) the age in childhood at which the defendant began residing continuously in the United States,
(2) whether and for how long the defendant attended school in the United States,
(3) the duration of the defendant’s continued residence in the United States,
(4) the duration of the defendant’s presence outside the United States,
(5) the nature and extent of the defendant’s familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States,
(6) the seriousness of the defendant’s criminal history, and
(7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.”