By Neha Malhi
WASHINGTON, DC – The July report of the U.S. Sentencing Commission, “Illegal Reentry: The Impact of the 2016 Guideline Amendment,” sheds light on the key implication of the Amendment 802 by looking back at the sentencings over the last 10 fiscal years.
The Amendment 802 is the comprehensive revision of the guidelines covering illegal reentry offenses in the last two decades, implemented by the U.S. Sentencing Commission, and became effective Nov. 1, 2016.
The motivating factors for Amendment 802 were Simplification, Severity and Accounting for Other Criminal Conduct. Under this amendment, the Commission switched cases approach from “Categorical approach” to “Sentence-imposed” approach.
Per Amendment 802, “Enhancements are no longer based exclusively on the nature of a pre-deportation conviction. New enhancements are based on three separate categories of prior convictions that apply cumulatively: 1) prior illegal reentry offenses; and 2) prior offenses other than illegal reentry that occurred before the defendant was ordered removed from the U.S. for the first time; and for felonies, the increase in offense level is based on the length of sentence imposed; for misdemeanors, the increase is based on the type of offense (categorical).”
The third category is “prior offenses other than illegal reentry (felonies and three or more misdemeanors) that occurred after the defendant’s first order of removal or deportation; for felonies, the increase in offense level is based on the length of sentence imposed; for misdemeanors, the increase is based on the type of offense (categorical).”
Per the July report, “Over the last ten fiscal years, immigration offenders have represented either the highest number or second-highest number of offenders sentenced annually. The vast majority of immigration offenders were sentenced under section 2L1.2.”
Per Report’s measuring analysis, the Amendment 802 ameliorated Guidelines Manual concerns the severity of 2L1.2’s enhancements.
Report analysis, according to the report, showed consistence variance rates of offenders before and after the amendments, while it showed an increase in the court-imposed sentencing with the applicable guideline range at a higher range on average in the five fiscal years after the amendment.
The report’s analysis highlighted the fact that “these sentencing trends likely are attributable to the decreasing severity of the sentencing enhancements applicable to offenders sentenced under section 2L1.2.”
The analysis of the report showed the decrease in the sentencing of 12 or more offenses level from 26,094 offenders in the five fiscal years before the amendment to 5,497 offenders in the five fiscal years after amendment.
Subsequently, there was an average decrease of sentencing, from seven to four offense levels.
Another main key analysis brough up by the report was that Amendment 802 significantly simplifies guideline application and reduced appeals.
“In the five fiscal years before the amendment, 31,824 offenders sentenced under section 2L1.2 received a sentencing enhancement that potentially required courts to analyze predicate offenses using the categorical approach. That number decreased considerably to only 59 offenders in the five fiscal years after the amendment,” the report noted.
The report also indicated a sharp 90 percent percentage decrease in the number of opinions on section 2L1.2 from 239 in 2017 fiscal year to only 24 in 2021 fiscal year.
This sharp percentage decrease correlates with the increase in the immigration sentencing, as the number of sentencings steadily rose from the 2017 fiscal year to a 10-year high in the 2019 fiscal year.
The report concluded, “Regardless of external factors, Amendment 802 succeeded in simplifying the guidelines and reducing litigation. The amendment introduced a simpler, sentenced-imposed approach that essentially eliminated the use of a categorical approach.” 
