Alien's motivation for illegal reentry may not serve as basis for downward departure under "lesser harms" provision of sentencing guidelines
SENTENCING
United States v. Hernandez-Baide, No. 04-3101, ___ F.3d ___ (10th Cir. Dec. 20, 2004)((Kansas). Appeal of sentence by deported alien for illegal reentry in violation of 18 U.S.C. § 1326(a) and (b)(2). HELD: Because offense of illegal reentry is strict liability regulatory crime, not specific intent crime, an alien’s intent, motivation, or reason for illegally reentering country cannot serve as a basis for a downward departure at sentencing. Thus, fact that alien reentered United States without authorization after prior deportation in order to participate in judicial proceeding to prevent termination of parental rights over daughter, could not be used to invoke "lesser harms" downward departure provision of § 5K2.11 of the United States Sentencing Guidelines. Read the opinion here. |
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