The Tenth Circuit Speaks to Deportability as a Basis for Variance

The opinion issued today in Sanchez-Leon the Tenth Circuit took up (among other issues) whether deportability is a factor that should be considered by the sentencing court.

District Court:  Mr. Sanchez-Leon entered into a plea agreement to eight counts, “including various counts of drug possession with intent to distribute, conspiracy, aiding and abetting, and possession of a firearm during a drug crime.”  The PSR calculated a U.S. Sentencing Commission Guidelines range of 295 to 353 months.  However, at his sentencing hearing Mr. Sanchez-Leon’s counsel and the government asked for 120 month sentence agreed upon in plea agreement relying on “Mr. Sanchez-Leon’s family, employment potential, age, and deportability as reasons to impose 17.5 years.”

Unconvinced, the district court stated: “[N]obody has filed a motion for a variant sentence, and I don’t understand what the basis is for a variant sentence here.”  The Government responded that age and deportation weighed in favor of 17.5 years. Defense counsel responded by again discussing Mr. Sanchez-Leon’s family, his age upon release, and his deportability. Defense counsel presented additional factors: Mr. Sanchez-Leon had no criminal history, some of his co-defendants received shorter sentences, and the Guidelines for methamphetamine possession and distribution are harsh.  The court then rescheduled sentencing so the government could better articulate their reasons for downward variance. 
 
After assessing the government’s more extensive variance argument, the court remained unconvinced, particularly noting that age and deportability were not permissible bases for variance.  Concluding, “the sentence imposed here should be a guideline sentence . . . [and] there is no warranted justification for a disparity between Mr. Sanchez and other similarly situated defendants found guilty of similar conduct with similar criminal histories,” the court sentenced Sanchez to 295 months. 
 
Tenth Circuit: “The district court’s avoidance of deportability due to Castro-Rivas does not square with Gall and Smart. By ruling that it could not consider the “ordinary” factor of deportability in its consideration of the motion for variance, the district court imposed a greater burden on Mr. Sanchez-Leon than the law required.”  Though the court agreed with the District Court’s decision to disregard age. 
 
The opinion also provides a good summary of the latest standards of review for substantive and procedural reasonableness.  Click here for the full opinion, or in Library > Sentencing Opinions. 

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming