FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District
G. Lehman for appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief,
Lynch, Selya, and Barron, Circuit Judges.
appeal presents a question of first impression in this
circuit: is a defendant's potential future deportation a
factor that a sentencing court may consider under 18 U.S.C.
§ 3553(a)? Although we answer this question in the
affirmative, we conclude that the court below acted well
within the encincture of its discretion in determining that
it would not give weight to the appellant's potential
future deportation. Therefore, we reject the appellant's
claims of error and uphold the challenged sentence.
this sentencing appeal follows a guilty plea, we gather the
relevant facts from the change-of-plea colloquy, the
undisputed portions of the presentence investigation report
(PSI Report), and the transcript of the disposition hearing.
See United States v. Narváez-Soto, 773 F.3d
282, 284 (1st Cir. 2014). Beginning in September of 2015,
defendant-appellant Brent Hercules participated in a
conspiracy to transport drugs into central Maine for
distribution. During a period of approximately eleven months,
the appellant drove vehicles carrying drugs, drug dealers,
and/or drug proceeds between New York and Maine once or twice
of 2017, the hammer fell: a federal grand jury sitting in the
District of Maine charged the appellant with one count of
conspiracy to distribute and possess with intent to
distribute controlled substances, see 21 U.S.C.
§§ 841(a)(1), 846, and one count of possession with
intent to distribute the same, see id. §
841(a)(1). After some preliminaries, not relevant here, the
appellant pleaded guilty to both counts. When prepared, the
PSI Report revealed that the appellant had been born in the
British Virgin Islands in 1986 and had immigrated to the
United States with his parents when he was three years of
age. He became a lawful permanent resident in July of 1999.
By the time of sentencing, U.S. Immigration and Customs
Enforcement (ICE) had filed a detainer against the appellant
with an eye toward subsequent deportation.
to the disposition hearing, the appellant submitted a
sentencing memorandum in which he asserted that he was
certain to be deported after serving his sentence. He
therefore beseeched the sentencing court, when mulling the
factors delineated in 18 U.S.C. § 3553(a), to consider
his future deportation and the possibility of a downward
variance on that basis. The government opposed this entreaty,
contending that the appellant's deportation was not a
"foregone conclusion" and that a criminal
defendant's potential deportation was an inappropriate
ground for imposing a downwardly variant sentence.
district court addressed this dispute at the outset of the
disposition hearing. The court enumerated three reasons why
it would not take the appellant's potential future
deportation into account either as a sentencing factor or, by
extension, as a basis for lowering the appellant's
the court stated that although there was surely "a
risk" that the appellant would be deported after serving
his sentence, it was "not at all convinced that [he]
will, in fact, be deported." In support, the court noted
shifting immigration enforcement priorities among various
presidential administrations, particularly with respect to
"individuals like the [appellant, ] who was brought here
as a child." In a similar vein, the court noted that the
appellant had two prior state drug convictions, neither of
which had triggered his deportation. Given what it characterized
as the "uncertainty" surrounding the
appellant's deportation, the court expressed discomfort
with reducing his sentence based on a future event that might
the court explained its view that potential future
deportation qualifies as a "collateral consequence"
of committing a federal criminal offense. Even though the
court recognized that it was not "forbidden from
considering" collateral consequences, it described such
consequences as difficult to assess inasmuch as every
defendant potentially faces wide-ranging repercussions as a
result of a federal criminal conviction (including difficulty
securing employment and strained personal and familial
the court highlighted its "greatest concern" with
considering the possibility of future deportation: that
placing such a factor into the mix might lead inexorably to
sentencing disparities between citizen- and
noncitizen-defendants. In the court's judgment, it would
be "fundamentally wrong" to reduce a
noncitizen-defendant's sentence because of potential
future deportation when comparable arguments ...