Another UBS Depositor Sentence; Consideration of the Role of Potential Deportation (1/8/15)

I write today on a recent sentencing for Gabriel Gabella.  Judge Jack Weinstein, U.S. district judge for ED NY, a giant among great judges, imposed the sentence.  (Weinstein's Wikipedia entry is here.)  The sentencing decision is quoted in full below.  See United States v. Gabella, 2014 U.S. Dist. LEXIS 176367 (ED NY 2014).  The USAO EDNY's press release on the  plea of guilty is here.  The guilty plea announcement succinctly sets forth the key background:

Gabriel Gabella, a former client of the Swiss bank UBS AG, pleaded guilty today at the federal courthouse in Brooklyn, New York, to a felony information charging him with concealing ownership of his Swiss UBS AG bank account from the United States by willfully failing to file a Report of Foreign Bank and Financial Accounts (FBAR). When sentenced, Gabella faces a statutory maximum of five years’ incarceration for his crime. In the plea agreement he entered today, Gabella agreed to pay a civil penalty of $3,140,346, which is half the value of his unreported Swiss bank account in 2007, for the willful failure to file the FBAR. Gabella also agreed to make restitution of $239,012 to the Internal Revenue Service for federal income taxes he failed to pay for 2005, 2006 and 2007 by hiding his ownership of his UBS account. 

Judge Weinstein imposed a sentence of three years of probation, with a fine $50,000.   Here is the opinion in full (caption omitted):

I. Introduction 

On June 18, 2014, Gabriel Gabella pled guilty to one count of willful failure to file a report of foreign bank and financial accounts. 31 U.S.C. §§ 5314, 5322(a). 

On December 9, 2014, Gabella was sentenced to a term of three years of probation and fined $50,000. The proceeding was videotaped in order to develop an accurate record of the courtroom atmosphere, as well as the factors and considerations that a district court must evaluate in imposing a sentence in accordance with section 3553(a) of Title 18. See In re Sentencing, 219 F.R.D. 262, 264-65 (E.D.N.Y. 2004) (describing the value of video recording for the review of sentences on appeal). 

II. Offense Level and Category 

The total offense level is 17. The criminal history category is I, yielding a guidelines imprisonment range of 24-30 months. U.S.S.G. Ch. 5 Pt. A. 

III. Law

A sentencing court shall "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). If the sentence is not of the kind prescribed by, or is outside the range of, the Sentencing Guidelines referred to in section 3553(a)(4) of Title 18, the court shall indicate the specific reasons for imposing a sentence different from the Guidelines. 18 U.S.C. 3553( c)(2). These "reasons must also be stated with specificity in the written order of judgment and commitment." Id. Even though the mandatory nature of the Guidelines has been excised and they are now "advisory," United States v. Booker, 543 U.S. 220, 245-46 (2005), the sentencing court must still adhere to the requirements of section 3553(c)(2) of Title 18, United States v. Jones, 460 F.3d 191, 197 (2d Cir. 2006). 

The sentencing court's written statement of reasons shall be "a simple, fact-specific statement explaining why the Guidelines range did not account for a specific factor or factors under § 3553(a)." United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir. 2006), abrogated in part on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007)). Such a statement should demonstrate that the court "considered the parties' arguments and that it has a reasoned basis for exercising its own legal decisionmaking authority." United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)) (internal quotations and alterations omitted). 

In view of the excessive incarceration rates in the recent past and their unnecessary, deleterious effects on individuals sentenced, society and our economy, parsimony in incarceration is to be prized. See, e.g., 18 (a) [sic - 18 USC 3553(a)] ("The court shall impose a sentence sufficient, but not greater than necessary"); National Research council of the National Academies, The Growth of Incarceration in the United States, Exploring Causes and Consequences, 8 (2014) ("Parsimony: the period of confinement should be sufficient but not greater than necessary to achieve the goals of sentencing policy."). 

IV. 18 U.S.C. § 3553(a) considerations 

The court considered the "nature and circumstances of the offense and the history and characteristics of the defendant" in sentencing him. 18 U.S.C. 3553(a)(1). 

Gabella had a financial interest in, and signature and other authority over, a Swiss bank account at Union Bank of Switzerland. He failed to file a Report of Foreign Bank and Financial Records for the years 2006 and 2007. The value of these unreported accounts, which largely represented inheritances, for the requisite time period was $6,280,692. Gabella also failed to report earned income from his foreign bank accounts for the 2005 through 2007 tax years. The United States lost taxes totaling $239,012 for those years. To date, Gabella has paid a civil penalty fine of $3,140,346.35 and $239,012 in restitution. 

Gabella, seventy-three, is an Italian citizen. He is married and has one child. He is retired from a long career as an urban planner for the United Nations. The instant offense represents his only known involvement in the criminal justice system. Over the past five years, throughout the government's investigation of this case, Gabella has fully cooperated with the United States Attorney's Office and the Internal Revenue Service. 

V. Sentence 

Under section 3553(a)(2)(B) of Title 18, a sentencing court must consider two major factors: general and specific deterrence. The prospect of deportation was considered in Gabella's sentencing. See United States v. Chin Chong, No. 13-CR-570, 2014 WL 4773978, at *13 (E.D.N.Y. Sept. 24, 2014). 

In light of Gabella's cooperation and the fact that Immigration and Customs Enforcement will be informed of the crime to which he pled guilty, Gabella was sentenced to a term of three years of probation and fined $50,000. 18 U.S.C. § 3561(c)(1); U.S.S.G. § 5E1.2(c)(3). A $100 special assessment was imposed. 18 U.S.C. § 3013(a)(2)(A). The fine and the special assessment are payable within thirty days. 

VI. Conclusion 

General and specific deterrence are achieved by the sentence imposed, and all elements of the Sentencing Guidelines and statutes have been considered. Respectful consideration was given to the Sentencing Commission's policy statements, and all other factors listed under section 3 553(a) of Title 18, to ensure that the sentence is "sufficient, but not greater than necessary, to comply with the purposes" of sentencing. 

/s/ Jack B. Weinstein
Jack B. Weinstein
Senior United States District Judge
Dated: December 9, 2014
Brooklyn, New York

JAT Comments:

1.  Note the discussion of the "parsimony clause" in 18 USC § 3553(a), here, which is:

(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. * * * *

    (2) the need for the sentence imposed—
        (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
        (B) to afford adequate deterrence to criminal conduct;
        (C) to protect the public from further crimes of the defendant; and
        (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

As to the parsimony clause, see United States v. Park, 758 F.3d 193, 200 (2d Cir. 2014) (noting “In determining whether a sentence shocks the judicial conscience or is otherwise unsupportable, we use as our ‘lodestar the parsimony clause of 18 U.S.C. § 3553(a)’”) Most readers will have some idea of the meaning of parsimony in this context.  A general definition of parsimony (not focused on this context) is “economy in the use of means to an end.” (Merriam Webster On Line Dictionary available at http://www.merriam-webster.com/dictionary/parsimony (viewed January 8, 2015)).  Without getting into Occam’s razor, the concept for sentencing is that the least sentence that achieves the designated purposes is the sentence commanded by 18 USC § 3553(a), even if some of the factors might suggest a greater sentence. Some judges are concerned that focus on the parsimony clause gives improperly denigrates the other provisions of the sentencing statute.  See United States v. Irey, 612 F3d 1160, 1196-7 (11th Cir. 2010), cert. denied ___ US ___, 131 S. Ct. 1813 (2011).

2. Judge Weinstein states cryptically:  "The prospect of deportation was considered in Gabella's sentencing. See United States v. Chin Chong, No. 13-CR-570, 2014 WL 4773978, at *13 (E.D.N.Y. Sept. 24, 2014)."  The Chong case, here, decided by Judge Weinstein, is very interesting.   I cut and paste certain excerpts where Judge Weinstein weaves in sentencing factors and effects of potential deportation:

Application of routine sentencing principles should lead district courts to account for the prospect of deportation when considering imposition of a term of incarceration. For district judges who face real persons—judges who are duty-bound to act "in a field of pain and death," Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1609 (1986)—sensitivity to the reactions of the individuals subject to our criminal justice system ensures that sentences are "sufficient, but not greater than necessary." 18 U.S.C. § 3553(a); cf. Primo Levi, The Drowned and the Saved 141 (1989) ("But above all . . . I contracted . . . the habit of never remaining indifferent to the individuals that chance brings before me."). 

II. Context 

A. Prison Overcrowding 

Criminal sentencing is predicated on an "individualized assessment" of each defendant. Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). The question whether sentencing judges should consider—and how much weight they should give to—the prospect of deportation of the persons before them implicates broad legal, political, and social controversies. See generally Peter H. Schuck, Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy, 27 Geo. Immigr. L.J. 597 (2013) (urging the early release and removal of many deportable immigrant criminals). A review of recent developments provides context for the case at hand. 

The rapid growth of the American prison population has, in addition to destroying lives and communities unnecessarily, put significant strain on taxpayers and those tasked with warehousing the convicted. The situation has become so grave that the Supreme Court recently affirmed "what is perhaps the most radical injunction issued by a court in our Nation's history: an order requiring California to release the staggering number of 46,000 convicted criminals." Brown v. Plata, 131 S. Ct. 1910, 1950, 179 L. Ed. 2d 969 (2011) (Scalia, J., dissenting); see also id. at 1928 (majority opinion) ("A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society."). The public safety benefits attributable to this vast carceral project are dubious. See, e.g., Franklin E. Zimring, The City that Became Safe: New York's Lessons for Urban Crime and Its Control 165 (2011) ("The limited data available make it quite clear that both the timing and magnitude of the decline in serious crimes in [New York City] could not be accounted for by outmigration or incapacitation."). 

B. Deportation 

Debates over immigration continue to confound national policymakers. The recent arrival of thousands of unaccompanied minors at the United States' southern border is but the latest chapter of this ongoing saga. See Michael D. Shear & Jeremy W. Peters, Obama Asks for $3.7 Billion to Aid Border, N.Y. Times, July 9, 2014, at Al; Barry Moreno, Children of Ellis Island (2005) (discussing arrival of immigrant children, including unaccompanied minors, at Ellis Island). While "[i]mmigrants are less likely than American citizens to be convicted of crimes committed in the United States," the "number of immigrants in American prisons and jails is very significant." Schuck, Immigrant Criminals, 27 Geo. Immigr. L.J., supra, at 597. 

Since the mid-1980s, the federal government has increasingly embraced a national policy of deporting immigrants who commit crimes. Id. at 642-49. Congress has expanded the definition of "aggravated felony," lowered the sentencing threshold required to make specific crimes the basis for deportation, subjected many immigrant criminals to summary deportation, and foreclosed most forms of discretionary relief. Id. at 644-45. The Executive Branch has been proactive, as well, seeking deportation of many individuals convicted of serious as well as minor crimes. Ginger Thompson & Sarah Cohen, More Deportations Follow Minor Crimes, Data Shows, N.Y. Times, Apr. 7, 2014, at A1 ("[S]ince President Obama took office, two-thirds of the nearly two million deportation cases involve people who had committed minor infractions, including traffic violations, or had no criminal record at all. Twenty percent—or about 394,000—of the cases involved people convicted of serious crimes, including drug-related offenses . . . ."). 

The practice of increasing deportations as a result of criminal convictions represents a "dramatic[]" change in the landscape of federal immigration law. As the Supreme Court recently explained: 

While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The "drastic measure" of deportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes . . . . These changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. 

Padilla v. Kentucky, 559 U.S. 356, 360-64, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (citations omitted). 

III. Law 

A. Effect of Deportation on Sentences 

The Court of Appeals for the Second Circuit holds that when "determining what sentence is 'sufficient, but not greater than necessary,' to serve the needs of justice, 18 U.S.C. § 3553(a), a district court may take into account the uncertainties presented by the prospect of [deportation] proceedings and the impact deportation will have on the defendant and his family." Thavaraja, 740 F.3d at 262-63. In so doing, the court recognized that an earlier line of its cases prohibiting consideration of deportability was abrogated. Id.; see United States v. Wills, 476 F.3d 103 (2d Cir. 2007); United States v. Restrepo, 999 F.2d 640 (2d Cir. 1993); cf. United States v. Castro-Rivas, 254 F. App'x 742, 751 (10th Cir. 2007) (citing Wills, 476 F.3d at 109), abrogated by United States v. Sanchez-Leon, No. 13-1401, 2014 U.S. App. LEXIS 16294, 2014 WL 4178302 (10th Cir. Aug. 25, 2014). 

These earlier Second Circuit cases have been relied upon by other courts of appeals, some of which continue to reject the relevance of deportability at sentencing. See United States v. Telles-Milton, 347 F. App'x 522, 525 (11th Cir. 2009) ("[W]e are not aware of any case in which we have upheld a downward departure based upon collateral consequences related directly or indirectly to the defendant's status as an alien.") (quotation marks and citations omitted); United States v. Misquitta, 568 Fed. Appx. 154, 2014 WL 2523783, at *158 (3d Cir. 2014) ("multiple circuits have held that a district court is not permitted to consider [deportability]."). 

Other appellate courts have held or hinted that district judges may consider deportability, but that they are not required to do so. See United States v. Salguero-Ortiz, 483 F. App'x 858, 864 (4th Cir. 2012) ("While we have implicitly concluded that district courts have the discretion to impose below-guidelines sentences [based on the defendant's deportable status] . . . we have never suggested that district courts are required to do so . . . . Accordingly, the district court did not err by failing to raise this issue sua sponte") (internal citations omitted); United States v. Samayoa-Baltazar, 436 F. App'x 620 (6th Cir. 2011) ("While we might prefer that the district court had explicitly addressed defendant's argument that his deportation represented punishment that warranted a variance, the context and the record make clear the court's reasoning."); United States v. Molina, 563 F.3d 676, 679 n.3 (8th Cir. 2009) ("This is not to say that the district court was precluded from considering the effects of [the defendant]'s eventual deportation in connection with the statutory sentencing factors, only that the court was not required to do so after [the defendant] failed to raise the issue at sentencing.") (emphasis in original); United States v. Garay, 235 F.3d 230, 233 n.18 (5th Cir. 2000) (recognizing abrogation of United States v. Nnanna, 7 F.3d 420 (5th Cir. 1993), and acknowledging "alienage and its attendant consequences" may provide basis for downward departure). 

B. Section 3553(a)(2) Factors 

Discretion remains an indispensable mitigating safety valve for the law's sometimes destructive and illogical effects. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011) (holding mandatory minimum sentence unconstitutional), rev 'd, 731 F.3d 204 (2d Cir. 2013); United States v. C.R., 972 F. Supp. 2d 457 (E.D.N.Y. 2013) ("The effect of harsh minimum sentences in cases such as [this] is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences was physically sacrificing them to ancient gods for the supposed benefit of society.") (internal citations omitted). 

A district judge now has "broad discretion" in imposing a sentence, United States v. Booker, 543 U.S. 220, 233, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), except where Congress has imposed a "mandatory minimum" for a particular offense. See United States v. Reingold, 731 F.3d 204 (2d Cir. 2013); see also United States v. McIntosh, No. 11-cr-500, 2014 U.S. Dist. LEXIS 100550, 2014 WL 3675113, at *6 (S.D.N.Y. July 23, 2014) ("By interpreting the mandatory minimum provision to prohibit a sentencing court's individualized assessment and to override the requirement of parsimony, the Chavez Court [549 F.3d 119 (2d Cir. 2008)] held that one section of the U.S. Code—Section 924(c)—overrides the clear requirement of another section—Section 3553(a) . . . . The Court therefore puts on blinders, as Chavez commands, to the next 57 years of [defendant]'s life when determining what sentence is appropriate[.]"). 

Federal law provides district judges with basic sentencing considerations: it instructs the district court to "impose a sentence sufficient, but not greater than necessary" to achieve the basic aims of sentencing, with sensitivity to the "history and characteristics of the defendant." 18 U.S.C. § 3553(a), (a)(1); see also 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."). Section 3553 points judges to the four traditional justifications of the criminal sentence—retribution, deterrence, incapacitation, and rehabilitation—with the command that "each of the four stated purposes should be considered in imposing sentence in a particular case." Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 Fed. Sent'g Rep. 326 (1991) (quoting S. Rep. 98-225 (98th Cong. 1st Sess. 1983)); see also 18 U.S.C. § 3553 (a) (sentence must be "sufficient, but not greater than necessary" to comply with these purposes). 

As explained below, Section 3553 should now be interpreted as requiring district courts to weigh the prospect of deportation, which is "an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants[,]" when imposing a sentence. Padilla, 559 U.S. at 364. 

1. Just Punishment 

Section 3553(a)(2)(A) provides that the sentencing court shall consider the need for the sentence "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense[.]" 

Deportation is punishment, at least outside the "special heaven reserved for the theoreticians of the law [where one encounters] the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life." Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935). "Every one knows that to be forcibly taken away from home and family and friends and business and property, and sent across the ocean to a distant land, is punishment[;] and that oftentimes most severe and cruel." Fong Yue Ting v. United States, 149 U.S. 698, 740, 13 S. Ct. 1016, 37 L. Ed. 905 (1893) (Brewer, J., dissenting); cf. Edward Everett Hale, The Man without a Country, Atlantic Monthly, Dec. 1863, at 665-680 ("Youngster, let that show you what it is to be without a family, without a home, and without a country. And if you are ever tempted to say a word or to do a thing that shall put a bar between you and your family, your home, and your country, pray God in His mercy to take you that instant home to His own heaven."). 

Inveighing against the Alien and Sedition Acts, James Madison commented: 

If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness — a country where he may have formed the most tender connexions, where he may have vested his entire property, and acquired property of the real and permanent, as well as the movable and temporary kind; where he enjoys under the laws a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for[;] . . . if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. 

James Madison, Letters and Other Writings of James Madison 526 (Cornell University Library 2009) (1865). 

More recently, the close link between the penalty of deportation and criminal punishment was at the heart of the Supreme Court's opinion in Padilla, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (holding erroneous advice of counsel concerning immigration consequences of conviction may support a Sixth Amendment claim). The Court emphasized that deportation, although "civil in nature," is: 

nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it most difficult to divorce the penalty from the conviction in the deportation context. Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. 

Padilla, 559 U.S. at 365-66 (citations and quotation marks omitted); accord Fong Haw Tan v. Pehlan, 333 U.S. 6, 10, 68 S. Ct. 374, 92 L. Ed. 433 (1948) ("Deportation is a drastic measure and at times the equivalent of banishment or exile. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty.") (internal citations omitted). 

In imposing "just punishment" for a particular offense, a sentencing judge cannot ignore the additional penalties and hardships that will attach as a result of conviction. See Hugh LaFollette, Collateral Consequences of Punishment: Civil Penalties Accompanying Formal Punishment, 22 J. of Applied Phil. 241, 244-46 (2005) (discussing and critiquing on proportionality grounds retributivist justification of collateral consequences); Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer & Meda Chesney-Lind eds., 2002) (arguing collateral punishments "are clearly retributive and convey societal condemnation of antisocial behavior"). It does not matter whether conviction's consequences are categorized as "direct" or "collateral." See Padilla, 559 U.S. at 366 ("Deportation as a consequence of a criminal conviction is . . . uniquely difficult to classify as either a direct or a collateral consequence."). Deportation is experienced as, and popularly understood to be, a form of punishment. The law does not contend otherwise.. 

An excessively harsh meaning of "just punishment" cannot be discerned from the statute's text or the voluminous legislative history of the Comprehensive Crime Control Act of 1983. Rather, Congress endorsed a flexible approach:The first purpose listed . . . —essentially the "just deserts" concept—should be reflected clearly in all sentences . . . . From the defendant's standpoint the sentence should not be unreasonably harsh under all the circumstances of the case and should not differ substantially from the sentence given to another similarly situated defendant convicted of a similar offense under similar circumstances.S. Rep. No. 98-225, at 74-75 (1983) (emphasis added). It is untenable to maintain that judges should impose a sentence that, "[f]rom the defendant's perspective," is not "unreasonably harsh under all the circumstances of the case," while ignoring circumstances that are likely to be the most important to the defendant in evaluating the punishment. 

The United States Sentencing Commission's Guidelines Manual does not directly address deportation, but it is notable that it urges district courts to take account of civil collateral consequences when imposing punishment. Sensibly, the Commission recommends that a district court imposing "punitive" criminal fines take into account "any collateral consequences of conviction, including civil obligations arising from the defendant's conduct." United States Sentencing Commission, Guidelines Manual, § 5E1.2(d)(5) (Nov. 2013). 

A court tasked with imposing a sentence that "provide[s] just punishment is obliged to consider whether the defendant is likely to face deportation. This may require—as it does in the present case—a lesser term of imprisonment for noncitizen defendants than otherwise would be appropriate. 

2. Deterrence 

Apart from whether it may be considered "punishment" for purposes of Section 3553(a)(2)(A), the possibility of deportation is germane to the question whether the imposed sentence is "sufficient, but not greater than necessary . . . to afford adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a). 

For criminal sanctions to "afford . . . deterrence," specific or general, at least three assumptions must be made: "[t]he potential offender must know of the [*17]  rule; he must perceive the cost of violation as greater than the perceived benefit; and he must be able and willing to bring such knowledge to bear on his conduct decision at the time of the offense." Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo. L.J. 949, 953 (2003). 

Less severe criminal sanctions will suffice to provide "adequate deterrence" when the defendants face the double threat of incarceration and deportation as a result of their conduct. 

The "bad man of the law" cares not a whit whether deportation is characterized as a direct or collateral consequence of his conduct, or whether the penalty is civil or criminal in nature; he "cares only for the material consequences [that his] knowledge enables him to predict." Oliver Wendell Holmes, Jr. The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897). Accord Padilla, 559 U.S. at 366 ("[W]e find it 'most difficult' to divorce the penalty from the conviction in the deportation context. Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.") (citation omitted). Deportation undeniably is a "material consequence" of criminal wrongdoing. Rational actors can be expected to conform their conduct to avoid such an unwelcome fate. 

Potential offenders, it is recognized, lack perfect information concerning the penalties that will attach for their misconduct. Were it otherwise, the Court's holding in Padilla would be superfluous, since noncitizen defendants would not need competent immigration advice to tell them what they know during plea bargaining. 

Some members of the general public, particularly citizens, might not appreciate the defendant-specific reasoning animating a more lenient sentence for a noncitizen offender. But this is a critique of all deterrence-based theories of punishment; it is a risk inherent whenever a sentence is tailored to the "history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). 

The broad insight upon which Padilla rests is pertinent: the prospect of deportation matters a great deal to individuals encountering the criminal justice system in the real world. 559 U.S. at 364 n.7 (noting "real-world examples" of situations in which deportation constitutes "the most important part" of the penalty imposed) but see Thomas J. Miles & Adam B. Cox, Does Immigration Enforcement Reduce Crime? Evidence from "Secure Communities", 57 J. of L. & Econ.(forthcoming Nov. 2014), available at http://its.Law.nyu.edu/faculty/profiles/representiveFiles/does_immigration_enforcement_reduce_crime_082514_94242D7E-F712-063A-64352391880DABF8.pdf (finding no meaningful reduction in local crime rates as a result of "Secure Communities," a federal program to check immigration status of persons arrested). 

In rejecting the relevance of deportability to deterrence considerations in (the now-repudiated) United States v. Wills, the Second Circuit's Court of Appeals explained: 

In addition, a sentencing scheme in which future deportation may lead to diminished sentences would weaken the deterrent effect of punishment. Some potential criminals may consider deportation preferable to imprisonment and would therefore not be as deterred from committing future crimes if they thought they would be deported rather than serve all or part of what should be their appropriate prison term. 

476 F.3d at 108. That reasoning reflected a misreading of Section 3553. Judges are not charged with imposing the sentence that provides the greatest deterrence possible; rather, the sentence should be "sufficient, but not greater than necessary . . . to afford adequate deterrence." 18 U.S.C. § 3553(a) (emphasis added). In cases where, because of established community ties, the added hardship of deportation results in a more severe penalty, a downward adjustment to the term of incarceration is warranted. 

The prospect of deportation is critical in assessing whether a particular punishment "afford[s] adequate deterrence to criminal conduct," both with respect to the individual defendant (specific deterrence) and to those who may learn of defendant's exile in the community at large (general deterrence). Id. 

3. Incapacitation 

Section 3553(a)(2)(C) requires that the sentence imposed be sufficient, but not greater than necessary, "to protect the public from further crimes of the defendant." This provision reflects a third traditional justification of sentencing—incapacitation. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 Fed. Sent'g Rep. 326, supra at 326. 

For many types of offenses, deportation will provide an effective means of protecting the public from future wrongdoing by the defendant, obviating the need for a lengthy and costly term of incarceration. A drug courier who imports controlled substances via a commercial airliner will face considerable difficulties committing another similar United States offense following deportation. Absent a prompt unlawful reentry, see 8 U.S.C. § 1326, or a crime capable of being committed from abroad, see, e.g., 18 U.S.C. § 2251(c), the American public is generally safe from those who have been deported. 

Expedited deportation of convicted criminals may increase the risk of harm to the public in the receiving countries, at least during the limited window of time the defendant would otherwise be incarcerated in an American prison. Section 3553 does not expressly distinguish between the need to protect the "American public" and the need to protect the "foreign public." And there is a strong argument that American deportation policies have fueled violence and instability in foreign countries. See generally Robert J. Lopez, Rich Connell & Chris Kraul, Gang Uses Deportation to Its Advantage to Flourish in U.S., L.A. Times, Oct. 30, 2005, at Al (discussing growth of US-trained criminal gangs in Central America); Scott Johnson, American-Born Gangs Helping Drive Immigrant Crisis at U.S. Border, National Geographic (July 23, 2014), http://news.nationalgeographic.com/news/2014/07/140723-immigration-minors-honduras-gang-violence-central-america; see also Mother of Exiles: Let the Kids In, Jewish Currents, Autumn 2014, at 5 ("In El Salvador, two infamous gangs . . . have turned the entire country into a turf-war battlefield . . . . And they were founded in Los Angeles. It wasn't until the late 1990s, when federal officials began deporting thousands of gang members, that they took root in the soil of El Salvador.") (emphasis in original). 

There are at least two reasons why these serious concerns about effects on other foreign countries are ultimately minor in the sentencing calculus. First, in determining the scope of the word "public," the district court is guided by the "commonsense notion that Congress generally legislates with domestic concerns in mind." Small v. United States, 544 U.S. 385, 388, 125 S. Ct. 1752, 161 L. Ed. 2d 651 (2005) (citation omitted) (construing phrase "convicted in any court" to exclude foreign courts for purposes of federal felon-in-possession statute). It is reasonable to assume that Congress was concerned solely with the well-being of the American public when it enacted Section 3553(a)(2)(C). Second, whether or not a term of incarceration is imposed, it remains the policy of the United States that individuals convicted of serious crimes—some of whom remain dangerous—be deported upon the completion of their incarceration. See supra Part II. Bilateral or international agreements, not individual sentencing decisions by judges, offer the appropriate approach to the inevitable difficulties abroad that deportation engenders. 

The diminished need to "protect the American public from further crimes of the deported defendant" argues in favor of shorter terms of incarceration. 

4. Rehabilitation 

The sentencing court must consider the need for the sentence imposed "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D). Imprisonment generally is "not an appropriate means of promoting correction and rehabilitation" 18 U.S.C. § 3582(a); see also S. Rep. 98-225, at 76-77 (same); Tapia v. United States, 131 S. Ct. 2382, 2384, 180 L. Ed. 2d 357 (2011) (same). 

Rehabilitative concerns weigh especially strongly against a term of imprisonment where the defendant is subject to deportation upon completion of a sentence. Although the government argues otherwise, the Bureau of Prisons has effectively endorsed this position, opting to exclude from rehabilitation programs (e.g., drug treatment, job training) many prisoners subject to Immigration and Customs Enforcement detainers. See Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. 2012) (rejecting argument that exclusion of deportable aliens from rehabilitative programs violates prisoner's equal-protection rights); Adams v. Apker, 148 F. App'x 93 (3rd Cir. 2005) (same); McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999) (same). See also U.S. Gov't Accountability Office, GAO-08-6, Cost of Prisons: Bureau of Prisons Needs Better Data to Assess Alternatives for Acquiring Low and Minimum Security Facilities, 5 (2007) ("According to BOP officials and private contractors . . . . [p]rograms that focus on preventing returns to prison are not required of private facilities [devoted to noncitizens] because criminal aliens are released for removal from the country and are not expected to return to U.S. communities or BOP custody."). Acting as a therapeutic aid for other countries through incarceration is not our national policy. 

Though mindful of the Second Circuit Court of Appeals' recent holding that "the cost of incarceration to the government . . . is not a relevant sentencing factor under the applicable statutes," United States v. Park, 758 F.3d 193, 2014 WL 3289493, at *3 (2d Cir. 2014), the district court is bound to consider whether the expenditure of scarce resources will effectively promote an enumerated Section 3553 factor. A lengthy term of imprisonment in the United States at the expense of the American taxpayer is unlikely to advance the effective rehabilitation of a defendant, particularly when the individual is soon to be expelled from the national community. See Benjamin Levin, Inmates for Rent, Sovereignty for Sale: The Global Prison Market, 23 S. Cal. Interdisc. L.J. 509, 532 (2014) ("If the law in a democratic society purports to represent a codification of popular values, norms, or aspirations, how is it appropriate for a different polity with potentially different values, norms, and aspirations to be responsible for enacting this socializing discipline, this ultimate ritual?"). 

C. Sentence Disparities 

Congress has emphasized "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). 

"The key word in discussing unwarranted sentence disparities is 'unwarranted.'" S. Rep. 98-225 at 161. The fact that the noncitizen defendant may receive a sentence less than the citizen defendant may seem counterintuitive, but, as explained above, the two are not similarly situated. To the contrary, noncitizens and citizens face radically different outcomes as a result of their convictions. Consistent with the Section 3553(a)(2) factors, disparate sentences often will be "warranted." 

Consideration has been given to the suggestion by some that significant disparities already exist between the sentences imposed on citizens and noncitizens. Because the evidence remains inconclusive, the court does not rely on this valuable body of scholarship in reaching its conclusion in the instant case. See Michael T. Light, The New Face of Legal Inequality: Noncitizens and the Long-Term Trends in Sentencing Disparities across U.S. District Courts, 1992-2009, 48 Law & Soc'y Rev. 447 (2014) (arguing data shows a non-citizenship "penalty" at sentencing and discussing conflicting studies); Jawjeong Wu & Jill M. D'Angelo, Unwarranted Disparity in Federal Sentencing: Noncitizen Crime as a Social/Group Threat, 39 Crim. Just. Rev. 58 (2014) (arguing "judges in districts with a large noncitizen population impose longer sentences on noncitizen offenders than those in districts with a small noncitizen population."); Richard D. Hartley & Luisa F. Armendariz, Border Justice Sentencing Federal Narcotics Offenders in Southwest Border Districts: A Focus on Citizenship Status, 27 J. of Contemp. Crim. Just. 43, 46 (2011) ("Studies including citizenship status in analyses of sentencing decisions have been especially scarce. Little is known, therefore, about how a defendant's citizenship status may affect judicial decision-making practices."); Scott E. Wolfe, David C. Pyrooz, & Cassia C. Spohn, Unraveling the Effect of Offender Citizenship Status on Federal Sentencing Outcomes, 40 Soc. Sci. Res. 349, 360 (2011) ("Both resident-legal aliens and illegal aliens faced substantially higher odds of incarceration than citizens, but illegal aliens (not resident-legal aliens) received shorter sentences than citizens.").

JAT Comments  on Chong:

1. The opinion is a tour de force on sentencing generally and the role of potential deportation specifically.

2. I particularly like the quotation from Primo Levi early on the in excerpt, and just quote it again:

Primo Levi, The Drowned and the Saved 141 (1989) ("But above all . . . I contracted . . . the habit of never remaining indifferent to the individuals that chance brings before me."). 

I have not read the cited Levi book, but have read Levi's Survival in Auschwitz, here, which came highly recommended to me and was given to me by a friend from my Torah study group.  You can get a flavor of Levi's humanity from the quote that Judge Weinstein uses, and of course of Judge Weinstein's humanity.  I do recommend highly Levi's Survival at Auschwitz.