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10th Cir. Says 'Why Not?' to Supervised Release

By Casey C. Sullivan, Esq. on May 14, 2015 4:15 PM

After Miguel Gutierrez-Carranza pleaded guilty to reentering the U.S. following a prior deportation, the district court sentenced him to three years of supervised release. Gutierrez-Carranza appealed, making the fairly straightforward argument that, since he was bound to be deported anyway, the supervised release was unreasonable. After all, he won't be in the country to be supervised.

That's not unreasonable enough for the Tenth Circuit, though. The court found that supervised release could provide deterrence against Gutierrez-Carranza illegally returning to see his family and children.

Sentencing Guidelines

Federal sentencing guidelines state that supervised release "ordinarily" isn't appropriate in cases when the defendant is a deportable alien who will likely be deported. First, as Gutierrez-Carranza's case makes clear, there is an inherent contradiction in ordering supervised release when an offender will then be deported outside the court's jurisdiction. Second, the commentary to the sentencing guidelines notes, the deterrent effect supervised release is supposed to have is best served by future prosecutions.

Those guidelines are advisory, however, and even they acknowledge that supervised release may be appropriate in some circumstances. Supervised release may be appropriate when it provides "an added measure of deterrence and protection based on the facts and circumstances" of an individual case.

Not the First Time, Probably Not the Last

The Tenth found that the district court's determination that the sentence was appropriate in Gutierrez-Carranza's case was reasonable. The court sought to account for the fact that Gutierrez-Carranza would likely try to return to the United States. He had violated one deportation order in the past, and his wife and children remained in the U.S., meaning it was reasonable to anticipate that he would try to return. The Tenth also found the terms reasonable given Gutierrez-Carranza's "violent criminal history."

If Gutierrez-Carranza does return, he would not be unusual. A study by the University of California-Davis found many deportees who leave family behind in the United States will return, in spite of the harsh penalties. Being separated from their children was the most significant factor influencing whether deported individuals would attempt to return, which the report claims raises questions about "the logic and cost-effectiveness of deporting parents."

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