Federal Illegal Reentry Charges: 8 USC 1326 Defense.

If the government pursues criminal charges for illegal reentry under section 1326(a), it carries a maximum sentence of two years’ imprisonment, a fine under Title 18, or both; probation may also be available under the general federal sentencing statutes In the federal justice system, a criminal charge is generally classified as a felony when the maximum sentence exceeds one year; thus, section 1326(a) constitutes a felony charge. This carries significant repercussions regardless of the eventual sentence imposed by a judge. At Spodek Law Group, we understand the stakes involved when facing federal illegal reentry charges and our attorneys work diligently.

What does section 1326 encompass?

Section 1326 specifically targets individuals who have previously been illegally deported or otherwise removed from the United States, or who previously resided in the United States in violation of the law and were subsequently detained or expelled. This statute makes it a federal offense for such individuals to enter or attempt to enter the United States, or to be found within the country.

When do illegal reentry statutes apply under § 1326?

The illegal reentry provisions of section 1326 apply to individuals who were removed, detained, or expelled if they have re-entered or attempted to re-enter the United States without authorization. Crucially, the statute requires a lack of express consent from the Attorney General, the Secretary of Homeland Security, or another relevant officer of the U.S. government, to apply for admission. If an individual re-enters the United States or attempts to re-enter after such consent was granted, then the criminal statutory provisions of section 1326 do not apply. However, it is important to note that receiving express consent to apply for admission is not the same as receiving permission to enter the country. After obtaining consent to apply, individuals still need to formally apply and receive authorization to re-enter the United States legally.

When may a defendant attack the prior removal order in federal court?

What is a Collateral Attack?

In addition to attacking the prosecution’s individual elements, a defendant in a federal illegal reentry case may have the ability to attack the legality of their prior removal order collaterally. A collateral attack occurs when the validity of a previous legal order is challenged within a subsequent, separate proceeding. In a section 1326 case, this means challenging the removal order during the criminal prosecution.

When Can a Defendant Collaterally Attack Their Removal Order?

In order to collaterally attack a removal order in federal district court under section 1326, the following conditions must be met: - Exhaustion of Administrative Remedies. Defendants must have exhausted all available administrative remedies before initiating a collateral attack in federal court. This means that prior to re-entering the country, they must have pursued all means of contesting their removal through the immigration court or other administrative channels. - Deprivation of Opportunity for Judicial Review. The defendant must also be deprived of an opportunity for judicial review. This includes circumstances where the defendant was unaware of the appeal deadline or did not know that judicial review was available. - Fundamental Unfairness in Removal Proceeding. The underlying removal proceeding must have been fundamentally unfair. This may include instances where the defendant was denied legal representation to which they were entitled or where substantial factual evidence was ignored, significantly altering the outcome of the proceeding. - Procedural Error That Caused Prejudice. Finally, the defendant must show that the procedural errors in the prior removal proceeding caused them actual prejudice. To establish prejudice, the defendant must demonstrate that the outcome of the proceeding would have been different if the errors had not occurred.

Facing Federal Illegal Reentry Charges?

Spodek Law Group is a criminal defense firm. Our lawyers defend against charges brought under section 1326. Whether challenging the validity of a prior removal order or attacking the prosecution’s case, we are dedicated to fighting for our clients’ freedom and future.

How do §1326 enhancements and USSG §2L1.2 affect likely prison time?

Section 1326 Statutory Enhancements

Section 1326 also contains enhancements that increase the potential prison sentence based on various factors. Section 1326(b)(1) increases the maximum penalty to ten years of imprisonment and a substantial fine for re-entry following deportation, expulsion, or removal under any of the specific circumstances enumerated in the statute. The most severe penalty is found under section 1326(b)(2), which can impose a maximum of twenty years of imprisonment. This particular enhancement applies when the prior removal from the United States followed a conviction for an aggravated felony.

USSG Section 2L1.2

In addition to the statutory framework of section 1326, the federal justice system also utilizes the U.S. Sentencing Guidelines (USSG) to determine prison sentences. For illegal reentry cases, USSG section 2L1.2 provides the framework for calculating the advisory guideline range that federal judges must properly calculate and consider This guideline system is designed to standardize sentencing and incorporate various aspects of the defendant’s history and the circumstances surrounding their illegal reentry into the country.

Calculating Likely Prison Sentence

Calculating a defendant’s likely prison sentence in an illegal reentry case requires a detailed examination of their prior convictions and the specific details of the offense at hand. Under USSG section 2L1.2, the calculation typically begins with a base offense level, to which adjustments are made based on various factors. These factors include whether the defendant has committed other crimes while in the United States in violation of their prior removal order, or if they have previously been found in violation of section 1326. The statutory maximums specified under section 1326(a), (b)(1), and (b)(2) are not the same as the defendant’s likely guideline sentence. Instead, the statutory maximum serves as the ultimate outer limit that the court can impose. The likely guideline sentence will fall within a calculated range based on the defendant’s specific circumstances, and it is this range that federal defense attorneys at Spodek Law Group focus on challenging during sentencing hearings. By understanding both the statutory enhancements and the USSG guideline calculations, our attorneys can provide informed advice and fight to minimize the potential consequences for our clients facing federal illegal reentry charges.

What does a fast-track plea require in an illegal-reentry case?

What are the Common Requirements of a Fast-Track Plea?

While requirements for fast-track plea offers vary from case to case, they typically include certain stipulations, such as waiving the right to challenge the indictment and the right to appeal the sentence in federal court. Along with these waivers, defendants may also be asked to agree to the prosecution’s sentencing recommendation, such as a stipulated sentence of two years. At Spodek Law Group, we negotiate fast-track plea agreements.

When is a Fast-Track Plea Available?

The availability of fast-track plea offers is not uniform across the federal court system. Instead, it can differ significantly depending on the judicial district and the specific circumstances surrounding the defendant. Many districts have established their own internal policies to streamline illegal reentry cases, while some defendants may be particularly well-positioned to accept a fast-track offer.

What Can Make a Defendant Ineligible for a Fast-Track Plea?

Certain factors can limit a defendant’s eligibility for a fast-track plea. Prior violent felony convictions or drug-trafficking convictions may serve as barriers. These cases can carry additional penalties, and the defendant may be denied the option to enter into a fast-track agreement based on their criminal history.

Even with a fast-track offer, the defendant’s actual sentence may still be below the range suggested by the sentencing guidelines. Federal judges have the authority to depart from the guidelines in certain circumstances, potentially leading to a sentence that is even more lenient than the stipulated recommendation.

Can Form I-212 permission undo an earlier §1326 charge?

Form I-212, Application for Permission to Reapply for Admission to the United States After Deportation or Removal, is commonly used by individuals seeking to re-enter the country after previously being removed or deported. The primary function of Form I-212 is to obtain the necessary permission to reapply for admission to the United States. This relief has implications for immigration admissibility but is not designed to automatically clear criminal charges filed under section 1326. Obtaining permission under Form I-212 does not retroactively authorize an earlier reentry. Even if an individual is eventually granted permission to reapply, it does not erase the illegality of a prior act of re-entering the United States in violation of section 1326. This is a critical distinction that affects whether the criminal charges will proceed or be dismissed. In some cases, obtaining humanitarian protection may result in positive immigration outcomes, such as eligibility for certain benefits. However, this does not automatically eliminate any criminal proceedings initiated under section 1326. The criminal process and immigration proceedings are separate, and receiving protection in one doesn’t necessarily end the other. Even if the criminal proceedings under section 1326 are pursued, a conviction can lead to sentencing that includes a period of incarceration and subsequent removal from the United States. This highlight underscores the importance of seeking experienced federal defense counsel at Spodek Law Group to fight the criminal charges effectively and mitigate the legal risks involved.

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