US v. Zapete-Garcia, 05-1352, vacates the sentence of a guy who was convicted for attempting to use a forged, counterfeit, or altered immigration document in violation of 18 U.S.C. § 1546(a). He was sentenced to eight times the maximum guidelines sentence. The District Court gave two reasons for such a high sentence:
First, he mentioned the fact that Zapete had previously been deported twice from the United States. Second, he indicated that Zapete's arrest in New York some years earlier, along with the accompanying outstanding bench warrant, was a factor calling for a longer sentence.
The court notes that the guidelines ( U.S.S.G. § 2L2.2(b)(1) ) already accounted for his repeat offenses. Therefore:
When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation.
But, the judge offered no such explanation for the need to double-count, and an eight-fold increase requires some explanation. Likewise, the court notes that a mere arrest should not be weighed too heavily because there, the guidelines “prohibits them from basing an upward departure solely on a defendant's prior arrest record. Williams v. United States, 503 U.S. 193, 197 (1992) (quoting U.S.S.G. § 4A1.3(a)(3)).” Moreover, in a rare amount of sympathy for the poor people in my country, the court notes:
This is because arrest "happens to the innocent as well as the guilty." Michelson v. United States, 335 U.S. 469, 482 (1948); cf. Cheek v. Bates, 615 F.2d 559, 563 (1st Cir. 1980) ("mere arrest" without conviction "clearly inadmissible to show lack of credibility").
Leaving us with a moral of the story, the court concludes:
Finally, we emphasize that we do not reject the sentence imposed below solely because of the magnitude of its deviation from the guideline-recommended range.