Enhancing Sentences for Past Crimes of Violence: The Unlikely Intersection of Illegal Reentry and Sex Crimes

Article excerpt

I. INTRODUCTION

Section 2L1.2 of the Federal Sentencing Guidelines Manual (the Guidelines) delineates a graduated sentencing scheme for the offense of unlawfully entering or remaining in the United States following a prior removal. (1) The scheme provides four levels of enhancements for defendants whose prior removal was upon conviction of a crime. (2) The severity of the enhancement is determined by the nature of the offense for which the defendant was removed, with the highest level reserved for the most culpable and dangerous offenses. One way the Guidelines make this distinction is by labeling an offense a "crime of violence," a term that is defined differently under section 2L1.2 than elsewhere in the Guidelines or the United States Code. (3) The United States Sentencing Commission has revised the section 2L1.2 definition of "crime of violence" several times to more accurately reflect the purposes of punishment in general and punishment of illegal reentry in particular. (4) Since 2001, that definition has laid out two paths by which a court may label an offense a crime of violence: (1) it may be one of a number of enumerated crimes considered per se crimes of violence, or (2) it may fall under a more general, catchall description of crimes that involve actual, attempted, or threatened physical force. (5)

The courts have not, however, been in accord as to whether and how certain crimes fit into either definition. The most recent question to split the circuits is what range of crimes constitutes "forcible sex offenses," one of the enumerated crimes of violence. (6) In 2008, the Sentencing Commission set forth amendments to the Guidelines that explicitly addressed a split among the appellate circuits as to whether a "forcible sex offense" requires that the use of physical force be an element of the offense. (7) The amendment clarified that, consistent with the evolution of state rape laws, "forcible sex offense" means any sexual contact that occurs against the will of the victim. (8)

This Comment examines the meaning of "forcible sex offense" under section 2L1.2 as part of a historical pattern and considers its implications going forward. Part II explores the crime of illegal reentry and the development of the accompanying sentencing regime. This Part also introduces the purposes of punishment and the Guidelines generally, and the purpose and development of section 2L1.2 in particular. Part III addresses the evolving definitions of "crime of violence" and "forcible sex offense," explaining the differences in interpretation that created the circuit split and the Commission's responses. Part IV briefly addresses the history of rape and sex offense law in the United States and considers the impact of that history on the current controversy. Finally, Part V discusses the intersection of sex offenses and immigration crimes in section 2L1.2 and the practical implications for each. This Comment suggests that the best way to synthesize and further the purposes of all of these competing aspects is to remove sex offenses from the "crime of violence" definition entirely and create a separate category of enhancement. Doing so harmonizes several purposes and concerns around this difficult area of law. The solution recognizes that sex offenders are dangerous and deserving of punishment and exclusion, but allows gradations among sex offenses to meet the stated purpose of assigning harsh punishments to only the most deserving offenders. The separation is also consistent with the movement toward understanding rape as a crime against individual autonomy rather than a crime of physical violence.

II. THE CRIME AND PUNISHMENT OF ILLEGAL REENTRY

The criminalization of immigration violations remains a relatively young area of law. (9) Regulation of immigration is traditionally a federal administrative function, whereas state judiciaries claim primary responsibility for the enforcement of criminal law. …