UNITED STATES of America, Plaintiff-Appellee, v. Hector LOAIZA-SANCHEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Luis Juarez-Gonzalez, Defendant-Appellant.
Nos. 09-2999, 09-3003
United States Court of Appeals, Eighth Circuit
Submitted: June 18, 2010. Filed: Sept. 22, 2010.
Rehearing and Rehearing En Banc Denied Oct. 27, 2010. Rehearing Denied Oct. 29, 2010.
622 F.3d 939
Roger L. Sutton, Sr., argued, Charles City, IA, for appellant, Loaiza-Sanchez.
Robert L. Teig, AUSA, argued, Cedar Rapids, IA, Robert Knief, on the brief, Sioux City, IA, for appellee.
Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
LOKEN, Circuit Judge.
Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to conspiring to distribute and possessing with intent to distribute a substantial quantity of methamphetamine in violation of
When reviewing the sentence imposed by a district court, we “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
Loaiza-Sanchez and Juarez-Gonzalez contend that the district court based their sentences on an improper sentencing factor, their status as illegal aliens. In considering this contention, we begin with the relevant statute,
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.
We then turn to the relevant guidelines provision, U.S.S.G. § 1B1.4:
In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See
18 U.S.C. § 3661 .2
The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.
The Commission reflected this prohibition in U.S.S.G. § 5H1.10, p.s. Loaiza-Sanchez invokes this prohibition in suggesting that taking illegal alien status into account is national origin discrimination because the majority of illegal aliens are Hispanics. However, “a person‘s legal status as a deportable alien is not synonymous with national origin.” United States v. Lopez-Salas, 266 F.3d 842, 846 n. 1 (8th Cir. 2001). Thus, the district court committed no procedural error when, consistent with these statutes and guideline provisions, it considered the illegal alien status of Loaiza-Sanchez and Juarez-Gonzalez.
Ignoring these governing statutes and guidelines provisions, Loaiza-Sanchez and Juarez-Gonzalez base their primary argument on our statement in United States v. Onwuemene that “sentencing an offender on the basis of factors such as race, national origin, or alienage violates the Constitution.” 933 F.2d 650, 651 (8th Cir. 1991) (emphasis added). That statement relied on more limited statements in pre-Guidelines sentencing decisions, United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir. 1989), and United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986). Taken literally, as Loaiza-Sanchez and Juarez-Gonzalez urge, the statement in Onwuemene is simply wrong. The Supreme Court has expressly rejected “the claim that ‘illegal aliens’ are a ‘suspect class.‘” Plyler v. Doe, 457 U.S. 202, 219 n. 19, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). To the contrary, the Court has explained:
In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government‘s power to regulate the conduct of its own citizenry. The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is “invidious.”
Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).
From the perspective of what a sentencing court may constitutionally consider, the correct view of the issue was stated by Judge Richard Arnold, with his customary incisiveness, in rejecting the argument that a defendant should have been granted a downward departure to offset “the alienage-based increased severity of his sentence“:
Defendant entered this country illegally. Thereafter, he committed aggravated felonies. He is therefore concededly deportable as a matter of law. As a consequence of his deportability, he is ... subjected to more onerous conditions of confinement. There is nothing unconstitutional or unfair about these consequences, all of which have followed upon the defendant‘s voluntary acts. We cannot agree that he is given a more onerous sentence solely on the basis of alienage.... [T]he result is simply the permissible consequence of two things: the commission of the crimes and the defendant‘s status under the immigration statutes.
United States v. Navarro, 218 F.3d 895, 897-98 (8th Cir. 2000); accord United States v. Bahena, 223 F.3d 797, 807 (8th Cir. 2000), cert. denied, 531 U.S. 1181, 121 S.Ct. 1163, 148 L.Ed.2d 1023 (2001).
Loaiza-Sanchez further argues that the district court committed procedural error by treating the guidelines as mandatory; failing to consider the
Finally, Loaiza-Sanchez and Juarez-Gonzalez argue that their sentences are substantively unreasonable. As the sentences fall within the advisory guidelines ranges, they are presumptively reasonable. Loaiza-Sanchez and Juarez-Gonzalez concede that they entered the United States illegally, misconduct that was not taken into account in determining the advisory ranges. The district court did not abuse its discretion by sentencing them above the bottom of those ranges.
The judgments of the district court are affirmed.
BRIGHT, dissenting.
I respectfully dissent. In my view, increasing the sentence of a defendant because he is in the country illegally makes little sense when the defendant will be deported after serving his term of imprisonment. As I previously wrote in United States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long sentences for illegal aliens punish not only the defendant but the American taxpayer. “It would be more sensible to give ... a stiff, but shorter sentence and then to promptly deport him ... as an example to other would-be drug dealers.” Id.
Current data on our nation‘s prison population and its associated costs evidences this point. Nonviolent offenders constitute over 60% of the prison and jail population. John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010), http://www.cepr.net/documents/publications/incarceration-2010-06.pdf. Nonviolent drug offenders account for 25% of all offenders behind bars. Id. Our country currently spends over $75 billion per year on corrections. Id. at 2. Reducing the number of nonviolent offenders in our prisons and jails by half would save our nation $16.9 billion per year. Id. It would save the federal government $2.1 billion per year. Id. at 11. In this case, there is no record of violent conduct and no need to heavily punish the defendants or to burden the American taxpayer.
Moreover, there are approximately 11.9 million unauthorized immigrants living in the United States. Jeffrey S. Passel, A
Finally, the defendants’ unlawful entry into this country does not warrant the penalty imposed by the district court. The maximum penalty for improper entry in violation of
Again, these are nonviolent drug offenders, who did not enter this country to traffic in narcotics, and who face deportation. Even if considering alienage is a permissible sentencing factor, the defendants’ illegal entry does not warrant the harsh penalties imposed here.