Enhancing sentences for past crimes of violence: the unlikely intersection of illegal reentry and sex crimes.

Author:Pringle, Abby

    Section 2L1.2 of the Federal Sentencing Guidelines Manual (the Guidelines) delineates a graduated sentencing scheme for the offense of unlawfully entering or remaining in the United States following a prior removal. (1) The scheme provides four levels of enhancements for defendants whose prior removal was upon conviction of a crime. (2) The severity of the enhancement is determined by the nature of the offense for which the defendant was removed, with the highest level reserved for the most culpable and dangerous offenses. One way the Guidelines make this distinction is by labeling an offense a "crime of violence," a term that is defined differently under section 2L1.2 than elsewhere in the Guidelines or the United States Code. (3) The United States Sentencing Commission has revised the section 2L1.2 definition of "crime of violence" several times to more accurately reflect the purposes of punishment in general and punishment of illegal reentry in particular. (4) Since 2001, that definition has laid out two paths by which a court may label an offense a crime of violence: (1) it may be one of a number of enumerated crimes considered per se crimes of violence, or (2) it may fall under a more general, catchall description of crimes that involve actual, attempted, or threatened physical force. (5)

    The courts have not, however, been in accord as to whether and how certain crimes fit into either definition. The most recent question to split the circuits is what range of crimes constitutes "forcible sex offenses," one of the enumerated crimes of violence. (6) In 2008, the Sentencing Commission set forth amendments to the Guidelines that explicitly addressed a split among the appellate circuits as to whether a "forcible sex offense" requires that the use of physical force be an element of the offense. (7) The amendment clarified that, consistent with the evolution of state rape laws, "forcible sex offense" means any sexual contact that occurs against the will of the victim. (8)

    This Comment examines the meaning of "forcible sex offense" under section 2L1.2 as part of a historical pattern and considers its implications going forward. Part II explores the crime of illegal reentry and the development of the accompanying sentencing regime. This Part also introduces the purposes of punishment and the Guidelines generally, and the purpose and development of section 2L1.2 in particular. Part III addresses the evolving definitions of "crime of violence" and "forcible sex offense," explaining the differences in interpretation that created the circuit split and the Commission's responses. Part IV briefly addresses the history of rape and sex offense law in the United States and considers the impact of that history on the current controversy. Finally, Part V discusses the intersection of sex offenses and immigration crimes in section 2L1.2 and the practical implications for each. This Comment suggests that the best way to synthesize and further the purposes of all of these competing aspects is to remove sex offenses from the "crime of violence" definition entirely and create a separate category of enhancement. Doing so harmonizes several purposes and concerns around this difficult area of law. The solution recognizes that sex offenders are dangerous and deserving of punishment and exclusion, but allows gradations among sex offenses to meet the stated purpose of assigning harsh punishments to only the most deserving offenders. The separation is also consistent with the movement toward understanding rape as a crime against individual autonomy rather than a crime of physical violence.


    The criminalization of immigration violations remains a relatively young area of law. (9) Regulation of immigration is traditionally a federal administrative function, whereas state judiciaries claim primary responsibility for the enforcement of criminal law. Though increasingly integrated, the two regimes still operate independently--and often ignore the effects of the other. (10)

    1. 8 U.S.C. [section] 1326 AND SECTION 2L1.2

      Section 2L1.2 of the Federal Sentencing Guidelines Manual governs criminal penalties for "Unlawfully Entering or Remaining in the United States" following a prior removal. (11) Specifically, section 2L1.2 applies to the "illegal reentry" crimes described by 8 U.S.C. [section] 1326. (12) Subsection (a) of this provision makes it a crime for any previously removed alien to "enter[], attempt[] to enter, or ... at any time [be] found in, the United States" regardless of the reason for his removal. (13) Conviction under subsection (a) carries a maximum prison sentence of two years. (14) Subsection (b), to which section 2L1.2 most often applies, increases the punishment for aliens removed under specific circumstances. Section 1326(b)(2), for example, provides a statutory maximum of twenty years imprisonment for an alien "whose removal was subsequent to a conviction for commission of an aggravated felony." (15)

      Section 1326 essentially makes reentry a strict liability crime. Though a general intent to reenter the country is required, specific intent is not; (16) once an offender is "found," he has no meaningful defense. (17) Accordingly, 99.3% of immigration convictions during the last fiscal year for which data are available were the result of a guilty plea. (18) The statute provides minimal gradation or specificity within the range of conduct it prohibits; since section 2L1.2 does create gradations (ableit based on the offense for which the noncitizen was removed from the country), the Guideline assumes a central role in defining culpability.

      Here the tension between criminal law and immigration law begins to emerge. Immigration law, like criminal law, regulates the relationship between the individual and the state, but the former has traditionally been understood as an exercise of state power to exclude individuals "whose presence in the country [Congress] deems hurtful." (19) Regardless of the facial similarities between an immigration adjudication and a criminal proceeding, a deportation decision "is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the Government to harbor persons whom it does not want." (20) The distinction is important, because noncitizens in immigration hearings do not have the same procedural rights as defendants in criminal trials, regardless of citizenship status. (21) Immigration defendants are entitled only to the constitutional guarantee of due process. (22)

      The Supreme Court maintains (albeit tenuously) that [section] 1326(b) does not violate due process by relying on these administrative deportation decisions to differentiate the level of punishment from that available under [section] 1326(a). (23) In so deciding, however, the Court explicitly expressed no view as to whether the holding applies to sentencing determinations based on decisions that bear "significantly" on the severity of the sentence. (24) In the context of illegal reentry, immigration decisions provide not only an element of the strict liability crime under [section] 1326 but also the basis for both determining and enhancing the Guidelines sentence. The Guidelines, however, deal explicitly with the criminal system, and the Sentencing Commission assumes a defendant subject to sentencing has received the benefits of that system's attendant guarantees.


      To understand how and why the "forcible sex offense" controversy arose (and may reasonably be resolved), some background on the Sentencing Guidelines and the purposes Congress seeks to achieve through sentencing is necessary. This history and structure both affect the ways in which the Guidelines are interpreted and necessarily inform the proper solution to any controversy. (25)

      A few unique features of the Guidelines make implementation unlike that of other federal statutes. First, the Sentencing Commission plays a role different from that of a legislative body, but one that is also not directly analogous to other administrative bodies. (26) Though considered an "independent agency in every relevant sense," (27) the Commission is situated by statute in the judiciary. This placement insulates the Commission from much of the reach of the Administrative Procedure Act of 1946, the source of judicial authority to review the actions and interpretations of administrative agencies. (28) Within the realm of its expertise, the Commission is not only the creator and proponent of its own "legislative rules," but it also monitors the rules' success and suggests amendments. (29) Crucially, the Commission also has primary authority, recognized by the Supreme Court, to resolve disagreements among appellate circuits as to substantive questions of Guideline interpretation where they arise. (30)

      Second, albeit relatedly, the relationship between the Commission and the courts is unusual. The Commission's roles include both regulation of judicial discretion and aid in judicial interpretation. (31) In both functions, the Commission speaks through commentary accompanying the Guidelines. The commentary binds the courts, though it is not reviewed by Congress and may be inconsistent with judicial precedent. (32)

      In establishing the Sentencing Commission, Congress identified a handful of purposes for criminal sentences: retribution, education, deterrence, and incapacitation. (33) The resulting Sentencing Reform Act of 1984 (SRA) charged the Commission with promulgating guidelines to further these purposes and simultaneously reducing the sentencing disparities observed under a discretionary sentencing regime. (34) The SRA commands that a sentence be "sufficient, but not greater than necessary" to achieve these goals. (35) When first enacted, the SRA required courts to adhere to the Sentencing Guidelines unless a departure was specifically...

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