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THE 2D U.S. CIRCUIT Court of Appeals has ruled that judges do not have the freedom to consider deportation as additional punishment in order to lower the sentence for a defendant. U.S. v. Wills, No. 06-0115-cr. The court said that, despite the change from a mandatory sentencing guidelines system to an advisory system brought about by the U.S. Supreme Court’s decision in U.S. v. Booker, 543 U.S. 270 (2005), judges are still barred from dramatically lowering a sentence because a defendant will be deported. In its 1993 decision, U.S. v. Restrepo, 999 F.2d 640, the 2d Circuit ruled that deportation could not be the basis of a downward departure under the Federal Sentencing Guidelines. U.S. District Judge Frederick Scullin of the Northern District of New York examined the guidelines, which called for a sentence of approximately 24 to 30 years. He considered the fact that the longest sentence Wills’ co-defendants had received was eight years, a sentencing disparity that he said was “not appropriate.” And while examining the guidelines factors under Section 3553(a), the judge focused on Section 3553(a)(2)(C), which considers the need “to protect the public from further crimes of the defendant.” In weighing this factor, the judge said that Wills would be deported immediately upon completion of his prison sentence. He ordered him to serve 14 years and 4 months in prison. Scullin noted Restrepo and assumed that a critical part of the decision’s reasoning was based on the guidelines structure that existed before Booker. The government appealed the nonguidelines sentence. Writing on behalf of the 2d Circuit, Judge Wilfred Feinberg said, “It was inappropriate for the district court to factor deportation in as an ‘additional punishment.’ ” Restrepo, the judge said, “stated that deportation was not a proper ground for a downward departure because deportation should not be treated as additional punishment, but this court’s opinion did not address deportation with a view to protection of the public under � 3553(a)(2)(C).” In fact, Feinberg said, the court “has not previously addressed the latter question.” First, he said, even assuming that the “public” for which the statute section intends to protect is the American public, “criminal conduct abroad is capable of harming Americans.” Second, “a sentencing scheme in which future deportation may lead to diminished sentences would weaken the deterrent effect of punishment.” Feinberg noted that in 2005 about 37% of defendants convicted in U.S. federal courts were noncitizens. The court recognized that the number of “non-U.S. citizen offenders is not necessarily equal to the number of deportable offenders, and that the effect of deportation on sentences will vary given district judges’ discretion to assess the weight to accord each of the � 3553(a) factors.” He added, “Nevertheless, we think the approach of the district judge in this case-treating the mere application of immigration law as the basis for a non-guidelines sentence-flouts the goal of individualized justice by improperly, and automatically, grouping a large percentage of defendants together to receive the same general sentencing treatment even in the absence of a Congressional directive to treat this group differently from others.” The 2d Circuit had said recently in U.S. v. Rattoballi, 452 F.3d 127 (2006), that a nonguidelines sentence that treats as unique factors that are in fact common to all defendants is “inherently suspect.” So in the Wills case, Feinberg said, “We believe that a non-guidelines sentence that purportedly rests on the judge’s prediction that a defendant will be deported, a factor applicable to a wide class of criminal defendants, should be treated the same way,” as the Rattoballi case.

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