Federal Judge Cindy K. Jorgenson told Marco Valle Hernandez he was lucky: New guidelines meant his sentence for crossing the border illegally after being deported would be cut by two-thirds.
Valle Hernandez, 23, who first came to the United States from Honduras when he was 14, was deported in 2014 after selling cocaine to an undercover officer in Salt Lake City. Under the old sentencing guidelines, he would have faced about three years in prison for crossing the border illegally near San Simon in February after being deported.
But changes from the U.S. Sentencing Commission took effect late last year and shortened Valle Hernandez’s sentencing range. As a result, Jorgenson sentenced him to one year in federal prison and three years’ probation — which he will serve after his prison term and deportation — at a Jan. 12 hearing in U.S. District Court in Tucson.
In most cases, the new guidelines mean shorter sentences for crossing the border illegally after being deported, experts and defense lawyers say. But sentences could lengthen for defendants with previous deportations and long criminal records.
The most important change is the elimination of the “categorical approach” to sentencing, said Jay Sagar, an assistant federal public defender and professor of practice at the University of Arizona’s James E. Rogers College of Law.
Under the old guidelines, judges looked at the category of crime previously committed, such as robbery or assault, to determine whether they were crimes of violence or aggravated felonies, which would then lengthen the sentence for crossing the border illegally after being deported. Under the new guidelines, judges now consider the sentences handed down for those crimes.
“It impacts pretty much all of the clients that we have for illegal re-entry offenses. It’s a whole different type of analysis,” Sagar said.
In another significant break from the old guidelines, when judges determine the sentence for illegal re-entry — the legal term for crossing the border illegally after being deported — they now will consider previous illegal entry and re-entry convictions and convictions for crimes that occurred after the defendant’s first deportation.
The sentencing commissioners chose to eliminate the categorical approach in April 2016, saying it was a “source of widespread complaints by judges” and was cumbersome to litigate.
In its place, the length of sentence imposed for previous crimes serves as a “good indicator of how serious the court viewed the offense at the time,” then-commission chair Judge Patti B. Saris said in the announcement of the new guidelines.
So far, defendants who were arrested before Nov. 1 are sentenced according to the guidelines that most benefit them.
Xavier Lopez Saucedo, a 40-year-old Mexican citizen with children in Tucson, was deported seven times and has theft and burglary convictions, federal court records show. His arrest for crossing the border illegally near Nogales in April 2016 would have meant 70 to 87 months in prison under the new guidelines.
But a federal prosecutor wrote in a sentencing memorandum that Lopez Saucedo was “extremely fortunate” to be sentenced under the old guidelines. As a result, he was sentenced Dec. 13 to 14 months in prison and three years’ probation.
The new guidelines also stiffen punishments for other immigration-related crime, such as smuggling children. But the changes to illegal border crossing sentences likely will have the furthest-reaching effects, given the volume of those cases in federal court.
Federal courts nationwide handled 18,500 illegal re-entry cases in fiscal year 2013, according to a report compiled by the sentencing commissioners to guide their decision. That amounts to 26 percent of all federal cases and 83 percent of all immigration-related cases that year.
In Arizona, about one-half of the 5,214 federal cases in fiscal year 2016 involved immigration offenses, according to the District of Arizona’s annual report. The federal court in Tucson handled 1,389 immigration-related cases, while the federal court in Phoenix handled 1,200.
It is unclear how the new guidelines will affect thousands of more cases prosecuted each year through Operation Streamline, a fast-track program in which people face both a misdemeanor charge of illegal entry and a felony charge of illegal re-entry. In those cases, defendants plead guilty to the misdemeanor charge and are sentenced to six months or less.
What changed?
The case of Jesus Cervantes Ochoa, who was arrested near Nogales in April 2016 for crossing the border illegally after being deported two years earlier, illustrates the complexity of the categorical approach.
His criminal record also included convictions in Oregon for burglary and possession of a firearm by a felon, spurring a federal prosecutor to spend six pages in a court document discussing whether Cervantes Ochoa’s convictions in Oregon state court counted in federal court as crimes of violence, aggravated felonies, or neither.
The discussion included detailed descriptions of Oregon’s burglary laws, references to opinions made by that state’s supreme court, and counter-arguments to decisions made in federal court in Oregon.
At a public hearing before the commission in March, Judge Raner C. Collins, chief judge for the District of Arizona, said, “I certainly want to see the categorical approach done away with,” but he worried that focusing on previous sentences would create other problems.
Collins gave the example of state judges who impose short sentences because they believe the defendants will be deported and want to avoid spending state resources on their incarceration.
In the April announcement of the guideline changes, Saris said judges are allowed to depart from the guidelines if they think the previous sentence overstated or understated the seriousness of the offense.
Initially, the commissioners proposed raising the starting point for determining sentences in illegal re-entry cases. If they had raised it, then every person arrested for illegal re-entry would have faced longer sentences.
Collins cautioned against the proposal, saying many of the low-level border crossers are “the least dangerous that we see.”
The commissioners were “persuaded by the majority of public comment and its own sentencing data” not to raise the base offense level, Saris wrote, noting the commission’s report on fiscal year 2013 cases showed 49 percent of defendants in illegal re-entry cases had children in the United States.
The report also showed 48 percent of defendants in illegal re-entry cases were convicted of a new crime — other than illegal re-entry — or violated their conditions of release after their first deportation.
Big picture
In general, the new guidelines are a “move in the right direction,” Sagar said.
“Most of our re-entry clients are hardworking people seeking to reunite with family members and to find work in desperate financial circumstances,” he said.
The new guidelines will result in a “softening” of penalties for crossing the border illegally in most cases, which likely will be “less of a deterrent to criminals coming back here,” said Jessica Vaughan, director of policy studies at the nonpartisan Center for Immigration Studies, which advocates for less immigration.
However, she said, “we are never going to be able to prosecute or incarcerate away this problem.”
Other deterrents, such as better border security, a crackdown on illegal employment and sanctuary cities, and the removal of family members who are in the country illegally, are needed to deter illegal re-entry, she said.
The old guidelines were “too harsh, too much one-size-fits-all,” said Muzaffar Chishti, director of the New York University office for the nonpartisan Migration Policy Institute, which researches immigration policies from a rights-based perspective.
Basing a prison sentence on the type of crime previously committed often resulted in sentences that were not “commensurate with the offenses,” Chishti said.
“Judges, over time, as they’ve seen more and more of these cases, they’ve gotten quite concerned about whether this is the right approach,” Chishti said.
Dan Cadman, a retired federal immigration agent who works for the Center for Immigration Studies, cast doubt on the claim made by the commissioners that the new guidelines will help some defendants and hurt others.
That claim “appears to be eyewash offered up to mask the fact that the guidelines in almost every case will result in substantially shorter sentences of incarceration,” he said, even when considering defendants who illegally crossed the border multiple times and have significant criminal histories.
A spokesman for the U.S. Attorney’s Office declined to comment on how the new guidelines will affect prosecutions in Southern Arizona, saying it was too early to tell.
Congress could have overturned the changes made by the seven commissioners, who are appointed by the president to six-year terms and confirmed by the Senate, but no action was taken prior to the new guidelines taking effect Nov. 1.
