Reliance, Even Just a Bit, on Immigration Consequences to Support Durational Departure Is Abuse of Discretion

State v. Peter, Minn.Ct.App., 12/17/2012.  Mr. Peter is a lawful permanent resident from Liberia.  The state charged Mr. Peter with burglary in the third degree for breaking into the Moorhead Habitat for Humanity.  He pled guilty.  At sentencing, he asked the trial court to sentence him to 360 days in jail instead of the Guidelines sentence of one year and one day.  (You can see where the Court is going when it describes the Guidelines sentence as “366 days’ imprisonment.”)  Mr. Peter asked the court to do this because if given the presumptive sentence the feds would likely deport him.  The court granted the departure motion.

The state appealed, saying that immigration consequences are not sentencing factors and thus can never support a departure.  Meantime, the trial court issued a sentencing memorandum in which the court said that the departure was also justified because of Mr. Peter’s age, family status, lack of a felony record, and his opportunity to find meaningful employment and education with the felony conviction.

The court of appeals reverses the trial court, relying in large part of a 2002 opinion, State v. Mendoza, 638 N.W.2d 480 (Minn.Ct.App., 2002), review denied, (Minn. 2002).  Mendoza relies on the “collateral consequence” dichotomy to conclude that consideration of possible deportation is not a valid consideration in deciding whether to depart from the guidelines.  Whether Mendoza survives Padilla is an open question.  The court of appeals also thought that consideration of immigration consequences gave “alien burglars” a leg up over “citizen burglars.”  The rationale also carried the risk that the same facts before two different judges could result if different sentences based on the judge’s views on immigration, a disparity that the Guidelines seeks to avoid.  Lastly, reliance on immigration consequences focuses on the offender rather than than on his offense.  Offender related factors don’t support durational departures.  State v. Chaklos, 528 N.W.2d 225 (Minn. 1995).

Which gets back to this “366 days” business.  The court of appeals observes that sentencing a felony as a gross misdemeanor is a durational departure, not a dispositional departure.  State v. Bauerly, 520 N.W.2d 760 (Minn.Ct.App., 1994).  Factors like age, lack of record, etc., are offender based and thus not appropriately considered for a durational departure.