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United States v. Hercules

United States Court of Appeals, First Circuit

January 9, 2020

BRENT HERCULES, a/k/a Herc, a/k/a B, Defendant, Appellant.


          Angela G. Lehman for appellant.

          Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Lynch, Selya, and Barron, Circuit Judges.


         This 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.

         I. BACKGROUND

         Because 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 each week.

         In May 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.

         Prior 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.[1] 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.

         The 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 sentence.

         First, 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.[2] 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 never occur.

         Second, 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 relationships).

         Third, 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 ...

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