What Happens If Someone Reenters the U.S. After Being Deported for Committing a Crime?

December 5th, 2018 by Tad Nelson in Criminal Defense

With all the recent talk about illegal immigration in Texas, it is important to keep a couple of things in mind. First, illegal entry into the United States is not, in and of itself, a felony. Rather, a first-time offender only faces a possible sentence of six months in jail and a fine.

But there are significantly more severe sanctions for someone who illegally reenters–or attempts to reenter–the United States after being removed (deported) for certain prior criminal acts. In these cases, the defendant faces felony charges and, depending on the nature of the prior crimes, may face enhanced penalties under the federal sentencing guidelines.

Fifth Circuit Clarifies What Qualifies as “Crime of Violence” Under Federal Sentencing Guidelines

The U.S. Fifth Circuit Court of Appeals, which has appellate jurisdiction over all Texas federal courts, recently issued a major decision clarifying the types of prior crimes that may subject a defendant to sentencing enhancements. The case, United States v. Reyes-Contreras represents a significant departure from prior Fifth Circuit rulings on this subject.

The underlying facts of the case are fairly simple. The defendant is a citizen of Honduras. In 2012, he was deported from the United States. Four years later, in 2016, U.S. immigration authorities arrested the defendant for attempting to reenter the country.

The defendant pleaded guilty to illegal reentry. There was no prior agreement on sentencing. The federal guidelines assign a “base level” to a given crime and then make adjustments for any qualifying “enhancements.” (There are 43 total levels.) In this case, the presentence report said the defendant committed a base offense of level 8, but that a 16-level enhancement applied because he committed two prior “crimes of violence” (COV).

Specifically, a Missouri court convicted the defendant in 2006 of voluntary manslaughter in the first degree and armed criminal action. This was originally a first-degree murder case–the defendant struck and killed a man with a baseball bat–but it was pleaded down to voluntary manslaughter.

On appeal, the defendant argued that odd as this may sound, his manslaughter conviction did not qualify as a COV. The reason for this was that Missouri’s manslaughter statute covered two types of offenses: (1) causing the death of another person under circumstances that would constitute murder, except that the defendant acted “under the influence of sudden passion arising from adequate cause”; and (2) knowingly assisting someone else “in the commission of self-murder.” The first definition is a COV; the second is not. The defendant maintained that the statute was “indivisible,” however, so it could not form a basis for a federal sentencing enhancement.

The full Fifth Circuit, reversing an earlier decision by a three-judge panel, said it was clear the defendant was convicted under the first definition of manslaughter, which fit the definition of a COV. And the statute was divisible, so it was appropriate for the sentencing court to use the manslaughter conviction as the basis for a sentencing enhancement.

The Fifth Circuit then went a step further and said that even if the defendant’s conviction fell under the second definition of the Missouri law–assisting in self-murder–that would also qualify as a COV. Assisting a murder involves the “indirect” use of force. And while the Fifth Circuit has previously said that COV must involve “direct” force, subsequent decisions by the U.S. Supreme Court have eliminated the distinction between direct and direct force. The Fifth Circuit, therefore, reversed its own prior decisions holding otherwise.

Speak with a Houston Criminal Defense Lawyer Today

Any federal criminal charge is serious, but the stakes are even higher for undocumented immigrants accused of serious offenses. If you need advice or assistance from a qualified Houston criminal defense attorney, call the Law Offices of Tad Nelson & Associates today.


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