Wednesday, February 26, 2014

Reentry Defendant's Sentence Affirmed

U.S. v. Estrada-Barrios, 2014 WL 464224 (2/6/14) (unpub'd) (Okl.) - The Court says the district court did not mistakenly believe the reentry guidelines recommended a supervised release term, even though the district court said things like; "the court denies the motion for a variance regarding the non-imposition of supervised release." The Court conceded what the judge said supported Mr. Estrada-Ramos's contention, but in context, such as the judge reading what defense counsel argued in his objections, the judge wasn't mistaken and there were reasons for imposing supervised release, i.e., an upward variance because Mr. Estrada-Ramos returned 3 months after deportation and having two sons to visit in the U.S., made it more likely he would return again. The Court didn't decide whether Mr. Estrada-Ramos's maximum sentence was two or twenty years. Instead, it said any error in imposing a sentence above 2 years was not plain where the defendant was ordered removed before he was convicted of an aggravated felony and was actually removed after the conviction. There was a difference of opinion among judges on the issue of whether the conviction must come before the deportation order or the actual deportation. So the error couldn't be plain. A circuit court judge's dissent didn't change that, no matter how scholarly and thorough the dissent was.