WHAT IS THE CATCH 22 HERE?

The Ninth Circuit Court of Appeals reaffirmed in United States v Garcia-Cardenas that the same conviction used to prove that an alien reentered the country following a criminal conviction can be used to enhance his sentence through his/her criminal history.

In determining a Federal sentence under the Guidelines two components are used. First the court determines a guideline for criminal conduct and second it raises the guideline based upon the defendant’s criminal history.

Jesus Garcia-Cardenas was sentenced to 70 months in Federal Prison for illegally reentering the country after removal in violation of 8 U.S.C. Section 1326. To gain a conviction for Section 1326 the government must show that the defendant was deported following a conviction. The Ninth Circuit ruled that the same conviction used to gain the 1326 conviction can also be used to enhance Garcia-Cardenas’ criminal history. Section 1326(b) states in part:

Notwithstanding subsection (a) of this section, in the case of
any alien described in such subsection –
(1) whose removal was subsequent to a conviction for commission
of three or more misdemeanors involving drugs, crimes against the
person, or both, or a felony (other than an aggravated felony),
such alien shall be fined under title 18, imprisoned not more
than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission
of an aggravated felony, such alien shall be fined under such
title, imprisoned not more than 20 years, or both;

The Probation Department recommended and the judge agreed that Garcia Cardenas’ Guidelines indicated a base offense level eight enhanced by an additional 16 levels for previously being convicted of a crime of violence and a two level decrease for acceptance of responsibility. The Court sentenced him to 70 months the mid-level sentence after taking into consideration his criminal history which included points for the same conviction that his sentence had already been increased 16 levels.

Of course the Catch 22 here is that in every case where a defendant is convicted of entering the country following a criminal conviction the prior conviction can be used to convict the defendant and to increase his criminal conduct level. Double use of the prior conviction does not indicate either that the criminal conduct is any greater than single use of the prior conduct would have indicated. Nor does it show any greater criminal history than single use would have shown. As a result double use of the conviction does not advance any legitimate goal of criminal justice other than to keep someone locked for an excessive period of time and the lengthy incarcerations increases the cost to the nation.