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The guideline for illegal entry offenses has been criticized by many criminal defense
attorneys and some judges for being excessively harsh, and by some former and current
assistant US attorneys for being vague and difficult to apply. 21
Who is Being Prosecuted for Illegal Entry and Reentry?
Individuals convicted of immigration offenses (the vast majority of whom are convicted of
illegal entry and reentry) come from very different populations than individuals convicted
of other federal crimes. According to data received by the US Sentencing Commission, 88
percent of defendants convicted of immigration offenses in 2012 were Hispanic, while only
31 percent of defendants convicted of other federal crimes were Hispanic. 22 Eighty-two
percent of immigration offenders did not finish high school, while 37 percent of other
federal offenders did not finish high school. 23
Among illegal entry cases prosecuted in district court in 2010 (which excludes the 40,000-
plus cases processed in magistrate court), 86 percent of defendants were men. 24 The
majority of defendants were under age 35, but 32 percent were 35 to 49 years old. Among
illegal reentry cases, 97 percent of defendants were men, 42 percent were between 25 and
34 years old, and another 41 percent were 35 to 49. In 2010, of the 23,489 defendants
charged with illegal entry or reentry in US district court, 32 illegal entry defendants and 50
illegal reentry defendants were US citizens. Seventy percent of illegal entry defendants and
85 percent of illegal reentry defendants were Mexican nationals. 25
21 See Keller, “Rethinking Illegal Entry and Reentry,” Fall 2012. Thirty-four percent of federal judges surveyed in 2010 agreed
that guideline sentences for these offenses are too long. US Sentencing Commission, “Results of Survey of United States
District Judges from January 2010 to March 2010,” June 2010,
http://www.ussc.gov/Research/Research_Projects/Surveys/20100608_Judge_Survey.pdf (accessed April 7, 2013). See also
Caleb E. Mason &Scott M. Lesowitz, “A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for
Prior Convictions,” Northern Illinois University Law Review, 2011,
http://www.niu.edu/law/organizations/law_review/pdfs/full_issues/31_2/Mason_6.pdf (accessed May 10, 2013).
22 US Sentencing Commission, 2012 Sourcebook, “Table 46: Demographic and Offense Information for Immigration Offenses,”
http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2012/Table46.pdf (accessed April 16, 2013).
23 Ibid.
24 Mark Motivans, US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “Immigration Offenders in the
Federal Criminal System, 2010,” July 2012, http://bjs.gov/index.cfm?ty=pbdetail&iid=4392 (accessed April 12, 2013), p. 22.
25 Ibid.
17 HUMAN RIGHTS WATCH | MAY 2013