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. Notable Side-Issue Referring to the requirements of the Feeney Amendment to the Prosecutorial Remedies and Tools Against the Exploitation of Children Today(PROTECT) Act of 2003, that all downward departures be reported to Congress, the district court judge in this case stated on the record that: "[T]here was a time when I felt I was a little bit more free to do that [depart downward]; but now, as I understand it, if I grant a departure like this, it’s going to get reported. And I’m not worried about my job, but I think to be consistent with the law, I have to be able to justify it . . ." The Tenth Circuit used the judge’s on-the-record statement as an "opportunity" to clarify the that the judge-reporting requirements of the Feeney Amendment, "as yet, have no effective section, are contingent on certain acts of the Attorney General, and appear to have been indefinitely suspended." Read the opinion here.