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TABLE 2: PERCENT CHANGE IN THE APPLICATION OF THE ILLEGAL ENTRY OFFENSE SENTENCING
GUIDELINE FROM 2002 TO 2011
2002 2011 Percent Change
FY 2002 - FY 2011
No prior conviction resulting in increase 1,097 5,687 418%
Prior felony or three or more misdemeanors resulting in a 4-
level increase
Prior aggravated felony or drug conviction resulting in an 8 or
12-level increase
835 6,890 725%
1,891 3,058 62%
Prior felony conviction resulting in a 16-level increase 2,747 5,852 113%
Total 6,570 21,487 227%
Source: US Sentencing Commission Guideline Application Frequencies (2002 - 2011),
http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics/Guideline_Application_Frequencie
s/2011/GAF_FY2011.cfm (accessed April 9, 2013).
Looking at this data another way, in 2011, 26 percent of those sentenced under this
guideline had no prior felony conviction and 59 percent had prior felony convictions for
nonviolent offenses. 47
According to federal public defenders, pre-sentence reports are generally waived only
when the defendant has no or minimal criminal history. 48 If one includes the 8,164 cases
the Commission excluded from its analysis because of the absence of a pre-sentence
report and adds those cases to the no-prior-felony category, the percentage of defendants
with no prior felony conviction is even higher, at 46 percent.
47 We have defined “nonviolent offense” to exclude “crimes of violence,” firearms offenses, child pornography, national
security or terrorism offenses, human trafficking, and alien smuggling.
48 A federal public defender in Texas told us that his office waives the pre-sentence report in cases where the defendant has
no prior felony convictions and is eligible for a sentence of straight probation. Federal public defenders in Arizona said presentence
reports are generally waived in “flip-flop” prosecutions, where the defendant is charged with both illegal reentry
and illegal entry, and then is offered a plea deal in which he or she would plead guilty to illegal entry and have the reentry
charge dismissed. According to these attorneys, these prosecutions generally do not include people with serious prior
criminal convictions. Human Rights Watch email correspondence with Chris Carlin, assistant federal defender, Alpine, Texas,
April 10, 2013; and Human Rights Watch interview with Milagros Cisneros and Susan Anderson, assistant federal defenders,
Phoenix, Arizona, April 2, 2013.
29 HUMAN RIGHTS WATCH | MAY 2013