U.S. Court of Appeals, Second Circuit
Offense Level — Illegal Entry
United States v. Perez-Frias
Appealed from the Southern District of New York
Background: Defendant Pedro Ruben Perez-Frias pleaded guilty to one count of illegally reentering the United States without permission after having been deported following a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. §1326(a) and (b)(2). The district court sentenced Perez-Frias principally to prison. Perez-Frias challenges only the substantive reasonableness of his sentence, arguing that the district court’s sentence was unduly harsh in view of the 18 U.S.C. §3553(a) factors and that the 16-level enhancement applicable to reentrants with certain prior convictions is not based on review of past sentencing practices and empirical studies. He also argues that it is overly harsh compared to guidelines applicable to more serious crimes, and is greater than necessary in view of districts that have “fast track” programs.
Perez-Frias, a citizen of the Dominican Republic, immigrated to the United States in 1977. On or about Dec. 12, 1995, at age 27, Perez-Frias was convicted in New York State Supreme Court, New York County, of manslaughter in the first degree, resulting in a sentence of 7 to 21 years’ imprisonment. The relevant facts underlying his conviction are as follows: Perez-Frias was dealing marijuana, told a group of friends that he was having a dispute with a rival seller, and inspired the murder of the rival by telling his friends about his grievance, though Perez-Frias was not otherwise involved in the killing. On or about June 2, 2008, Perez-Frias was released on parole into the custody of immigration authorities, and immediately deported to the Dominican Republic.
In August 2009, Perez-Frias illegally reentered the United States. Within two months, on Oct. 1, 2009, he was arrested in Manhattan for possession of marijuana.
Ruling: The court affirms the judgment of the district court. “The applicable guidelines range here is not rendered unreasonable simply because §2L1.2 establishes a base offense level for a nonviolent offense that is equal to or greater than that of certain violent offenses. Congress ‘has the power to define a crime and set its punishments,’” the court concluded.
Darrell B. Fields of Federal Defenders of New York Inc. for the appellant; Kan M. Nawaday, assistant U.S. attorney, for the appellee