The opinion of the court was delivered by: JOHN T. CURTIN
When Mr. Hinds presented himself on December 10, 1991, at the Peace Bridge in Buffalo, New York, to an Immigration Inspector, he claimed to be a citizen of Barbados and presented a Barbados passport in his own name. At that time, he also gave the officer a Green Card and told the officer that he was a permanent resident of the United States. That was not the case, however, because Mr. Hinds had been deported from Miami in August of 1989. An immediate check showed that his statement was not correct, and Mr. Hinds then admitted to the officer that he was the person who had been previously deported from the United States. At the time of his attempted entry, Mr. Hinds told the Immigration Officer that he had recently learned that one of his children had died, and he wanted to visit his wife.
Before trial, it became apparent to Mr. Hinds and his attorney that Mr. Hinds faced a substantial term of imprisonment, perhaps up to 96 months, if convicted. Therefore, Mr. Hinds' decision to go to trial was a practical one, although his chance of success was quite limited. Unfortunately for Mr. Hinds, the Sentencing Guidelines had been amended on November 1, 1991, only 40 days before his attempted entry on December 10. Prior to November 1, 1991, he faced a sentence of 21 to 27 months, with possible upward departure because of his past record. Because of the changes on November 1, 1991, the increase was a substantial one.
The presentence report revealed that Rawle Hinds is 43 years of age at this time. He went to Florida when he was 21 years old. He worked as a longshoreman, and the report indicates that he was a steady and reliable worker. He was employed as a longshoreman with the Longshoremen's Association in Fort Pierce, Florida, and his supervisor said that he had no complaints about Mr. Hinds' work performance.
After an opportunity to preliminarily review the presentence report, I notified the United States Attorney that I was considering a downward departure. The United States Attorney objected to Mr. Hinds' receiving any credit for acceptance of responsibility. Under the circumstances, even though the defendant did not plead guilty, he was forthcoming about culpability soon after he met with the officer at the Bridge. In consideration of the heavy sentence Mr. Hinds faced if convicted, his decision to go to trial was a reasonable one, and he should not be penalized for that decision.
CHANGE IN THE SENTENCING GUIDELINES
The Guidelines relating to offenses under 8 U.S.C. § 1326(a) are set forth at § 2L1.2. Prior to November 1, 1991, the base offense level was set at 8, with an increase of 4 levels if the defendant was previously convicted of a felony. On November 1, 1991, the base offense level remained unchanged, but the Guidelines were amended to provide: "If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels." § 2L1.2(b)(2). The term "aggravated felony" is defined in paragraph 7 of the Application Notes under 2L1.2 and tracks exactly the language of 8 U.S.C. § 1101 (a)(43):
The Sentencing Commission's reason for the amendment is set forth in Appendix C n.375 to the November 1, 1991, Guideline Amendments. It provides:
This amendment adds a specific offense characteristic providing an increase of 16 levels above the base offense level under § 2L1.2 for defendants who reenter the United States after having been deported subsequent to a conviction for an aggravated felony. Previously, such cases were addressed by a recommendation for consideration of an upward departure. . . . The Commission has determined that these increased offense levels are appropriate to reflect the serious nature of these offenses. In addition, this amendment revises the Commentary to § 2L1.2 to make the statutory reference more precise, and to clarify the operation of the guidelines in respect to prior criminal history. The effective date of this amendment is November 1, 1991.
The reason for the dramatic increase of 16 levels is explained only in the most general terms. No explanation is offered as to why the increase should be at 16 rather than at 12, or 20, or some other figure. It is true that Congress increased the sentence under this section in 1988 from a maximum term of 2 years to 5 years, and then in 1990 to a maximum term of 15 years. The Commission does not attempt to explain how this 16-level increase is tied to the Congressional amendment and why the diverse offenders described in 8 U.S.C. § 1101(a)(43) should all be treated the same.
The "aggravated felony" definition, 8 U.S.C. § 1101(a)(43), was a small part of a substantial reenactment of the Immigration laws. In the amendments, Congress addressed many problems facing the Immigration authorities. This section was only a small part of this substantial reenactment. It was the purpose of Congress to make sure that certain individuals described in this section would not be considered for admission or be permitted to remain in the United States under certain circumstances. Congress, if it desires, has the authority to provide that certain individuals should not be permitted to enter the United States if previously convicted of certain felonies. But the Congressional enactment at issue is civil in nature, and it is inappropriate to use it as part of a sentencing procedure. To apply this section to a sentencing problem will result in the inequitable treatment of offenders previously convicted of very different crimes.
In the enactment of the Immigration laws, Congress was justified in lumping the very different categories of the "aggravated felony" together. However, it is inappropriate and it makes for an unfair sentence to apply the Commission's scheme in the same manner to a person convicted of murder, which carries a possible life sentence, to one convicted of money-laundering. Perhaps the 16-level increase resulted from the Commission's concern with major drug dealers involved in large-scale cocaine or heroin distribution in the ...