Extracting Compassion from Confusion: Sentencing Noncitizens After United States v. Booker

Abstract

A noncitizen facing a federal judge for sentencing confronts a demonstrably different future than an otherwise identical citizen. Deportation, immigration detention, harsher prison conditions, and a longer actual sentence may all await the noncitizen federal inmate. The U.S. Courts of Appeals have disagreed as to whether a sentencing judge can take those consequences into consideration in crafting a sentence under the U.S. Sentencing Guidelines. This Note argues that the circuit split results from circuit courts’ varying appellate scrutiny of sentencing decisions after United States v. Booker. To resolve the split, this Note encourages the Sentencing Commission to adopt an amendment to the Guidelines, thereby promoting uniformity among sentencing courts. In the alternative, this Note argues that it is proper for sentencing courts to consider alienage under 18 U.S.C. § 3553.

Keywords: sentencing, immigration, noncitizen, alien, downward departure