US v. Azcona-Polanco — criminal sentencing — affirmance — Restrepo

Immigrants who have been convicted of a deportable offense are presumptively exempt from discretionary supervised release — deportation is essentially automatic, so imposing supervised release mainly serves to enhance any subsequent punishment for illegal reentry. But courts are allowed to impose supervised release on defendants who will be deported in individual cases, on the theory that the extra punishment will be an extra deterrent against re-entry.

That’s all backdrop for the sentencing procedure question the court answered yesterday: when judges impose supervised release on defendants who will be deported, despite the presumption, do they need to explain why? In a clear and thorough opinion, the Third Circuit said yes: they must acknowledge the presumption and state their reasons for nevertheless imposing it. In the case before it, the sentencing judge did neither, but the Court held that this failure was not plain error given the defendant’s prior criminal history including a prior illegal re-entry.

Joining Restrepo were Ambro and Vanaskie. The case was decided without oral argument.