Courts Lack Authority to Suspend a Failure-to-Depart Sentence After the Sentence Has Begun
United States v. Garcia-Quintanilla, No. 08-50400 (5th Cir. July 7, 2009) (Higginbotham, Garza, Prado)
Prefatory disclosure: I did some work on this case.
Ever heard of 8 U.S.C § 1253? It criminalizes conduct relating to an alien's failure to depart the United States after having been ordered to do so. It also contains a unique provision, in subsection (a)(3), permitting a district court to suspend the sentence of an alien convicted of failure-to-depart. The question presented in this case: does § 1253(a)(3) permit a court to suspend a failure-to-depart sentence after the sentence has begun? Answer: no.
Some context: Garcia, a citizen of El Salvador, was ordered removed from the United States. He refused, however, to cooperate with Salvadoran consular officials in obtaining the travel documents necessary for him to return to El Salvador. Consequently, the Government indicted him for failure-to-depart. "Up until the eve of trial, the Government offered to drop the charges if Garcia-Quintanilla would cooperate in his removal. [He] refused these offers, and a jury later found him guilty."
Although Garcia's advisory Guidelines range topped out at only 6 months, the Government sought an upward variance to the statutory maximum of 4 years, "suggesting that such a sentence would deter Garcia-Quintanilla from persisting in his refusal to speak with the Salvadoran consulate." The Government also justified its request by pointing to § 1253(a)(3), which it claimed would allow the district court to suspend Garcia's sentence should he change his mind in the future and cooperate in his removal. The district court—concerned that a six-month sentence would be insufficient to prompt Garcia's cooperation, thus leading to a series of piecemeal prosecutions for what amounts to an ongoing offense—agreed with the Government's arguments and sentenced Garcia to 4 years' imprisonment. In effect, the court of appeals noted, the sentence operated like civil contempt.
Garcia appealed, arguing that § 1253(a)(3) does not permit a district court to suspend a sentence after it has begun, and that his sentence was unreasonable because it was predicated on such authority. As Garcia did not raise the lack-of-authority argument in the district court, the court of appeals reviewed for plain error.
On the first question—whether there was error—the court began by examining the text and history of § 1253(a)(3), and found both lacking. The statute itself says nothing about when a district court may suspend the sentence, only that it may do so in certain circumstances. Legislative history was also unhelpful. The statute was enacted as part of IIRIRA in 1996, although it amounted to a reenactment of a statute that was part of the Immigration and Nationality Act of 1952. Nothing in the legislative history of either Act addressed the timing-of-suspension point. Complicating matters further, in the mid-1980's Congress passed the Sentencing Reform Act, which eliminated district courts' authority to suspend sentences.
The court, however, found guidance in "the historical practice of sentence suspension[,]" which revealed two important points. First, courts had no inherent authority to order suspension; the practice could only be authorized by Congress. Second, the Supreme Court interpreted the pre-SRA statutory scheme to "permit suspension of a sentence only before that sentence had begun." Consequently, "if Congress intended for § 1253(a)(3) to permit the suspension of a sentence after it has begun, we might expect Congress to say explicitly that a court may suspend a sentence before or after its execution, or we might expect the outlines of a procedure for bringing to the court’s attention the circumstances that warrant a suspension after the sentence has begun." Because the text and structure of § 1253(a)(3) appear to focus on the time of sentencing, "[a]nd because there is nothing in § 1253(a)(3) to indicate that Congress intended to deviate from the baseline of sentence suspension, we must presume that Congress intended § 1253(a)(3) to provide for suspension when suspension has normally occurred."
So there was error. But was it plain? Yes. Although there's no case law on the question, "it has long been the law that district courts cannot suspend a criminal sentence after it has begun. This error did not, therefore, merely rest on a misinterpretation of a statute. It also represented a substantial step beyond the district courts’ traditional authority as defined by the Supreme Court."
But did the error affect Garcia's substantial rights? Yes again. There was a reasonable probability that the sentence would have been lower absent the error, because 1) the sentence was eight times longer than the high end of the Guidelines range, and 2) "the possibility of suspension was an essential aspect of this sentence."
Okay, last hurdle: did the error seriously affect the integrity and fundamental fairness of the proceedings. Indeed it did, for a couple of reasons. First, were the court of appeals "not to correct the error, the end result would be a sentence that no one ever intended and which the court lacked the power to craft as it did[,]" as "the possibility of suspension was an essential aspect of Garcia-Quintanilla’s sentence." Second—and here's where you really want to pay attention—"the length of Garcia-Quintanilla’s erroneously-imposed sentence, the magnitude of which might itself be sufficient under many of our prior decisions. See, e.g., United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008) (holding that an error affected the fairness of judicial proceedings when it resulted in a sentence over two times longer than the proper Guidelines range)." (emphasis added). That may be the most significant part of this opinion. While there are very few prosecutions for failure-to-depart, plain-error application comes up all the time, and the fourth prong can be a big hurdle.
A final point . . . Garcia suggested that § 1253(a)(3) is a dead letter, in light of the Sentencing Reform Act's elimination of suspension authority. The court declined to decide the issue: "The only question in the present case is whether § 1253(a)(3) permits suspension after a sentence has begun; we can simply and safely assume that § 1253(a)(3) authorizes suspension up to the moment when a sentence begins." The court, though, went on to express "serious doubt as to Garcia-Quintanilla’s suggestion[,]" in light of the fact that § 1253(a)(3) was enacted (or re-enacted, depending on how you look at it) after the SRA.
Prefatory disclosure: I did some work on this case.
Ever heard of 8 U.S.C § 1253? It criminalizes conduct relating to an alien's failure to depart the United States after having been ordered to do so. It also contains a unique provision, in subsection (a)(3), permitting a district court to suspend the sentence of an alien convicted of failure-to-depart. The question presented in this case: does § 1253(a)(3) permit a court to suspend a failure-to-depart sentence after the sentence has begun? Answer: no.
Some context: Garcia, a citizen of El Salvador, was ordered removed from the United States. He refused, however, to cooperate with Salvadoran consular officials in obtaining the travel documents necessary for him to return to El Salvador. Consequently, the Government indicted him for failure-to-depart. "Up until the eve of trial, the Government offered to drop the charges if Garcia-Quintanilla would cooperate in his removal. [He] refused these offers, and a jury later found him guilty."
Although Garcia's advisory Guidelines range topped out at only 6 months, the Government sought an upward variance to the statutory maximum of 4 years, "suggesting that such a sentence would deter Garcia-Quintanilla from persisting in his refusal to speak with the Salvadoran consulate." The Government also justified its request by pointing to § 1253(a)(3), which it claimed would allow the district court to suspend Garcia's sentence should he change his mind in the future and cooperate in his removal. The district court—concerned that a six-month sentence would be insufficient to prompt Garcia's cooperation, thus leading to a series of piecemeal prosecutions for what amounts to an ongoing offense—agreed with the Government's arguments and sentenced Garcia to 4 years' imprisonment. In effect, the court of appeals noted, the sentence operated like civil contempt.
Garcia appealed, arguing that § 1253(a)(3) does not permit a district court to suspend a sentence after it has begun, and that his sentence was unreasonable because it was predicated on such authority. As Garcia did not raise the lack-of-authority argument in the district court, the court of appeals reviewed for plain error.
On the first question—whether there was error—the court began by examining the text and history of § 1253(a)(3), and found both lacking. The statute itself says nothing about when a district court may suspend the sentence, only that it may do so in certain circumstances. Legislative history was also unhelpful. The statute was enacted as part of IIRIRA in 1996, although it amounted to a reenactment of a statute that was part of the Immigration and Nationality Act of 1952. Nothing in the legislative history of either Act addressed the timing-of-suspension point. Complicating matters further, in the mid-1980's Congress passed the Sentencing Reform Act, which eliminated district courts' authority to suspend sentences.
The court, however, found guidance in "the historical practice of sentence suspension[,]" which revealed two important points. First, courts had no inherent authority to order suspension; the practice could only be authorized by Congress. Second, the Supreme Court interpreted the pre-SRA statutory scheme to "permit suspension of a sentence only before that sentence had begun." Consequently, "if Congress intended for § 1253(a)(3) to permit the suspension of a sentence after it has begun, we might expect Congress to say explicitly that a court may suspend a sentence before or after its execution, or we might expect the outlines of a procedure for bringing to the court’s attention the circumstances that warrant a suspension after the sentence has begun." Because the text and structure of § 1253(a)(3) appear to focus on the time of sentencing, "[a]nd because there is nothing in § 1253(a)(3) to indicate that Congress intended to deviate from the baseline of sentence suspension, we must presume that Congress intended § 1253(a)(3) to provide for suspension when suspension has normally occurred."
So there was error. But was it plain? Yes. Although there's no case law on the question, "it has long been the law that district courts cannot suspend a criminal sentence after it has begun. This error did not, therefore, merely rest on a misinterpretation of a statute. It also represented a substantial step beyond the district courts’ traditional authority as defined by the Supreme Court."
But did the error affect Garcia's substantial rights? Yes again. There was a reasonable probability that the sentence would have been lower absent the error, because 1) the sentence was eight times longer than the high end of the Guidelines range, and 2) "the possibility of suspension was an essential aspect of this sentence."
Okay, last hurdle: did the error seriously affect the integrity and fundamental fairness of the proceedings. Indeed it did, for a couple of reasons. First, were the court of appeals "not to correct the error, the end result would be a sentence that no one ever intended and which the court lacked the power to craft as it did[,]" as "the possibility of suspension was an essential aspect of Garcia-Quintanilla’s sentence." Second—and here's where you really want to pay attention—"the length of Garcia-Quintanilla’s erroneously-imposed sentence, the magnitude of which might itself be sufficient under many of our prior decisions. See, e.g., United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008) (holding that an error affected the fairness of judicial proceedings when it resulted in a sentence over two times longer than the proper Guidelines range)." (emphasis added). That may be the most significant part of this opinion. While there are very few prosecutions for failure-to-depart, plain-error application comes up all the time, and the fourth prong can be a big hurdle.
A final point . . . Garcia suggested that § 1253(a)(3) is a dead letter, in light of the Sentencing Reform Act's elimination of suspension authority. The court declined to decide the issue: "The only question in the present case is whether § 1253(a)(3) permits suspension after a sentence has begun; we can simply and safely assume that § 1253(a)(3) authorizes suspension up to the moment when a sentence begins." The court, though, went on to express "serious doubt as to Garcia-Quintanilla’s suggestion[,]" in light of the fact that § 1253(a)(3) was enacted (or re-enacted, depending on how you look at it) after the SRA.
Labels: Plain Error, Suspended Sentences
posted by Brad Bogan at 5:09 PM
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