New Report from the U.S. Sentencing Commission on 8 USC 1326

Today the U.S. Sentencing Commission released a new report on federal sentencing for unlawful reentry.

The report traces the impact of Amendment 802 to the Guideline, 2L1.2, which governs federal sentencing under Section 1326. Here are the report’s top findings:

• “Over the last ten fiscal years, immigration offenders have represented either the highest number or second-highest number of offenders sentenced annually.”
• “While variance rates for §2L1.2 offenders remained largely consistent before and after the amendment, courts imposed sentences within the applicable guideline range at a higher rate on average (66.0%) in the five fiscal years after the amendment than the five fiscal years before the amendment (56.6%).”
• “The number of offenders who received sentencing increases of 12 or more offense levels decreased substantially from 26,094 in the five fiscal years before the amendment to 5,497 in the five fiscal years after the amendment. The average sentencing increase similarly decreased from seven to four offense levels.”
• “After Amendment 802, the number of opinions on §2L1.2 appeals decreased by 90 percent, from 239 in fiscal year 2017 to 24 in fiscal year 2021.”

The full report can be found here.

As we have posted previously on the blog, the constitutionality of the illegal reentry statute is currently being challenged by defendants around the country. The statute was passed in 1929 as part of a racist effort to exclude Mexicans and other Latinos from the United States. For more on the history underlying this important legal challenge, be sure to read Professor Eric Fish’s new article on the topic.

IE