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Sentencing Commission Data: Limits and Discrepancies
One of the responsibilities of the US Sentencing Commission is the collection and analysis
of sentencing data from federal court judgments, indictments, and other relevant
documents. 41 It receives and examines information on all cases in which the sentencing
guidelines are applied (felonies and Class A misdemeanors, meaning misdemeanors for
which the maximum sentence is one year or less but more than six months). 42
Commission data on Guideline 2L1.2, for “Unlawfully entering or remaining in the United
States,” thus includes information on tens of thousands of illegal reentry cases, and a
couple hundred second or subsequent illegal entry cases, but not information on firsttime
convictions for illegal entry. It therefore does not provide a complete look at all
illegal entry and reentry cases.
The Commission’s data on the application of this guideline is also incomplete because the
Commission excludes from its analysis cases in which the pre-sentence report—which
details a defendant’s criminal, work, and family history—is missing. In fiscal year 2011, for
example, the Commission excluded 8,164 cases of illegal entry offenses because the court
had waived the pre-sentence report. 43 This may explain why the Commission’s total number
of illegal entry offense cases each year is significantly lower than the number of convictions
for illegal entry and reentry reported by the Transaction Records Access Clearinghouse,
which analyzes data received from the Executive Office of US Attorneys. 44
41 US Sentencing Commission, 2011 Sourcebook of Federal Sentencing Statistics, “Introduction,”
http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2011/sbtoc11.htm (accessed March 28, 2013).
42 Human Rights Watch email correspondence with Christine Kitchens, US Sentencing Commission, Office of Research and
Data, February 28, 2013; and telephone interviews with Christine Kitchens, March 4, 2013 and April 18, 2013. See also 18 US
Code Section 3559, Sentencing Classification of Offenses.
43 Human Rights Watch email correspondence and interviews with Christine Kitchens; and US Sentencing Commission,
“Report on the Continuing Impact of US v. Booker on Federal Sentencing,” 2012,
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports/2012_Booker
/Part_A.pdf (accessed April 25, 2013), p. 52.
44 For example, the Commission reported 21,487 cases in which Guideline 2L1.2 was applied in fiscal year 2011. TRAC,
however, reported 33,602 convictions for illegal reentry and 33,044 convictions for illegal entry in fiscal year 2011. Even if we
limit comparison of the Commission’s cases to TRAC’s data on illegal reentry convictions, there is a difference of 12,115 cases.
25 HUMAN RIGHTS WATCH | MAY 2013