Case o' The Week: Prior Too Old is Sentencing Gold, United States v. Amezcua-Vasquez

A great decision by Judge William Canby (right) reverses an illegal reentry sentence as substantively unreasonable. United States v. Amezcua-Vasquez,__ F.3d __, No. 07-50239, 2009 WL 1508566 (9th Cir. June 1, 2009), decision available here.

Players: Big victory by San Diego Assistant Federal Public Defender Janet Tung.

Facts: Javier Amezcua-Vasquez, a Mexican national, became a permanent resident of the U.S. in ‘57 when he was two. Id. at *1. In ‘81, he stabbed someone in a bar fight and got four years on attempted voluntary manslaughter and assault charges. Id. In ‘06 – when he was 51 years old – he was ordered removed to Mexico because of his ‘81 convictions. Id. He was arrested two weeks later trying to reenter the U.S., and charged with attempted illegal reentry. Id.

He pleaded open, and was hit with +16 OL for the 25-year old conviction. Id. at *2. Only one of Amezcua-Vasquez’s priors was recent enough to count for criminal history calculations. Id. The district court imposed an in-guideline sentence of 52 months. Id.

Issue(s): “Amezcua contends that the sentence imposed by the district court is unreasonable because it is the product of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), which is predicated on a conviction that is too old to score under the Guidelines’ criminal history provisions.” Id. at *3.

Held: “It is not per se unreasonable to apply the enhancement when the conviction is too stale to be counted for purposes of criminal history . . . We conclude, however, that under the circumstances of this case, it was unreasonable to adhere to the Guidelines sentence, with its full 16-level enhancement under § 2L1.2(b), because of the staleness of Amezcua’s prior conviction and his subsequent history showing no convictions for harming others or committing other crimes listed in Section 2L1.2. We therefore vacate Amezcua’s sentence, and remand for resentencing.” Id. at *3.

Of Note: One can count on both hands the number of sentences that have been reversed as substantively unreasonable after Booker – in any appellate court. To have this sentence reversed sends a strong message that illegal reentry sentences are out of whack. See also id. at *5 n.5 (listing Supreme Court vacate-and-remand orders of illegal reentry sentences after Gall).

How to Use: The “critical question” in this decision is its discussion of prior convictions, recidivism, and the unusual sentencing scheme in the illegal reentry guideline. Id. at *4-*6. For better or worse, the Guidelines use prior convictions as a predictor of recidivism – hence the “Criminal History” axis of the guideline table. Because the predictive value of priors for recidivism decreases with time, however, there are time limits for Criminal History convictions. See USSG § 4A1.1. The illegal reentry guideline, by contrast, has no such time limits. Section 2L1.2(b) dramatically increases the offense level based on the seriousness of prior offenses with no link to the risk of recidivism. Id. at *4. Therefore, this guideline has no staleness restrictions on using priors. Id. The jewel of Amezcua-Vasquez is Judge Canby’s explanation that, because there are no time limits on priors in § 2L1.2, it is substantively unreasonable to increase “a defendant’s sentence by the same magnitude irrespective of the age of the prior conviction a the time of reentry.” Id. at *4 (emphasis in original).

We’ve been challenging § 2L1.2's unrestricted use of old priors to escalate the offense level for years. See United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999) (rejecting challenge to guidelines’ counting of prior for illegal reentry guideline and rejection from criminal history). Now, after Booker, a district court is substantively unreasonable if it increases an illegal reentry sentence based on old priors without mitigating because of the age of the convictions. Potent stuff.

For Further Reading: U.C. Berkeley (Boalt) Prof Zimring (left) threw a few welcome bombshells about the guidelines at the Sentencing Commissions’ recent set of hearings at Stanford. See written testimony here. One interesting point was that the Guidelines use old parole approaches towards priors and sentencing – but don’t include the mitigating aspects of parole (like early release). As with much of the testimony criticizing the guidelines (and there was a lot of it), the Commission seemed (politely) unimpressed.

Image of the Hon. William Canby from http://www.law.umn.edu/lawreview/alumni/distinguished/canby.html

Image of Boalt Hall Professor Zimring from http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=127

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org