State of Alaska v Michael Silvera, Michael Silvera v State of Alaska, State of Alaska v Jose Manuel Perez

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Appellant/Cross-Appelle
v.
MICHAEL SILVERA,
Appellee/Cross-Appellan
STATE OF ALASKA,
Petitioner,
v.
JOSE MANUEL PEREZ,
Respondent.
e,
t.
)
) 	Court of Appeals No. A-11174/11193
Trial Court No. 2NO-07-359 CR	)
)
)
)
)
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) 	Court of Appeals No. A-11195
Trial Court No. 1JU-11-12/1JU-11-424 CR	)
)
)
) 	O P I N IO N
)
)
)
) 	No. 2400 — September 27, 2013
Appeal from the Statewide Three Judge Panel, Eric Smith, John
Suddock, and Fred Torrisi, Judges. Petition from the Statewide
Three Judge Panel, Eric Smith, John Suddock, and Anna Moran,
Judges.
Appearances: Renee McFarland, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellants
Silvera and Perez. Ann B. Black, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
Michael C. Geraghty, Attorney General, Juneau, for the Appel
lee.

Before: 	Mannheimer, Chief Judge, Allard, Judge, and Coats,
Senior Judge.1
Judge ALLARD.
This consolidated case raises the question of whether the statewide three-
judge sentencing panel has the authority to impose a sentence below the presumptive
range to lessen, or eliminate, the risk that a defendant will be deported.
The State argues that federal law prohibits state courts from modifying a
sentence for the purpose of influencing the federal immigration consequences of a
conviction. It also argues that the Alaska Statutes do not authorize the three-judge panel
to impose a sentence below the presumptive range based on the collateral consequences
of deportation. Lastly, it argues that adjusting a sentence to lessen the risk of deportation
violates the equal protection clause, because the non-citizen offender may receive a more
lenient sentence than a citizen would based on the same conduct.
For the reasons explained below, we conclude that the three-judge panel has
authority to impose a sentence below the presumptive range based on the harsh collateral
consequences of deportation and that this authority is not preempted by federal law.
With 	respect to 	Michael Silvera, the three-judge panel has 	already
concluded that Silvera’s potential deportation was a “harsh collateral consequence” that
qualified as a non-statutory mitigating factor and has already imposed a sentence below
the presumptive range. We therefore affirm Silvera’s sentence.
With respect to Jose Manuel Perez, the three-judge panel did not directly
decide whether deportation would qualify as a harsh collateral consequence. Instead, the
1 Sitting by assignment made pursuant to article IV, section 11 of the Alaska
Constitution and Administrative Rule 23(a).
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panel assumed that Perez had established this non-statutory mitigating factor and
concluded that consideration of this factor would justify imposing a sentence below the
presumptive range for one of Perez’s convictions. We therefore remand Perez’s case to
the three-judge panel for further proceedings.
Facts and proceedings
Michael Silvera
Michael Silvera has been a lawful resident of the United States since 1978.
He served in the Armed Forces for more than six years and received an honorable
discharge. In 2007, he was convicted of second-degree assault for assaulting a man with
a knife during a drunken incident in a taxicab in Nome.2 As a first felony offender,
Silvera faced a presumptive range of 1 to 3 years for that offense.3 Because his
conviction was for a crime of violence, he also faced deportation as an “aggravated
felon” if he was sentenced to1 year or more.4
Silvera asked his sentencing judge to refer his case to the three-judge
sentencing panel for consideration of the non-statutory mitigating factor of “harsh
collateral consequences.”5 Silvera asserted that he had a serious medical condition for
2 Silvera v. State, 244 P.3d 1138, 1141-42 (Alaska App. 2010).
3 AS 11.41.210(a), (b) (providing that second-degree assault is a class B felony); AS
12.55.125(d)(1) (setting the presumptive range for a first felony offender convicted of a class
B felony at 1-3 years).
4 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony” to include a crime of
violence if a sentence of 1 year or more is imposed); 8 U.S.C. § 1227(a)(2)(A)(iii) (providing
that a non-citizen convicted of an aggravated felony after admission is deportable).
5 Silvera, 244 P.3d at 1149.
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which he received regular treatment from the Veterans Administration and that he would
lose those benefits if he were deported.6 The sentencing judge ultimately ruled that it
would be manifestly unjust not to consider the non-statutory mitigating factor of “harsh
collateral consequences,” and he referred Silvera’s case to the three-judge panel.
The three-judge panel concluded that “harsh collateral consequences” is an
appropriate non-statutory mitigating factor. It then found that Silvera had established
that factor by showing: (1) that he was at substantial risk of deportation to Jamaica if he
received a sentence of 1 year or more; (2) that he would lose his medical benefits if he
were deported; and (3) that he would not be able to afford the medical care he needed,
even assuming it was available in Jamaica, because his illness had prevented him from
working. The panel also found that Silvera was not at high risk of reoffending. Based
on these findings, the panel concluded that a sentence within the presumptive range
would be manifestly unjust. 	It therefore imposed a sentence that would not subject
Silvera to deportation as an aggravated felon: a sentence of 364 days to serve.
Jose Perez
7
In 2011, Jose Perez was convicted of fourth-degree assault and interference
8
with official proceedings 	for assaulting a police informant who was a witness against
him in a drug case while he and the informant were incarcerated. Perez entered a plea
to the underlying drug charge (fourth-degree misconduct involving a controlled
6 Id. at 1150.
7 AS 11.41.230(a).
8 AS 11.56.510(a)(1)(A).
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substance for possessing heroin).9
At the time of sentencing, Perez had been a lawful permanent resident of
the United States for twenty-six years, since he was ten years old. 	As a first felony
offender, he faced a presumptive term of 1 to 3 years for the interference with official
10 	11
proceedings conviction 	and 0 to 2 years for the controlled substance conviction. 	He
also faced a sentence of up to 1 year for fourth-degree assault and imposition of up to
437 days of suspended time for revocation of his probation in another misdemeanor case.
Like Silvera, Perez asked the sentencing court to refer his case to the three-
judge sentencing panel for consideration of the proposed non-statutory mitigator of
“harsh collateral consequences.” 	The consequence Perez faced was deportation as an
aggravated felon if he received a sentence of 1 year or more for his interference with
official proceedings conviction.12 (Perez also faced deportation based on his drug
offense, but because that offense was not an aggravated felony under federal law, he
could apply for discretionary relief from deportation based on that conviction.13) Perez
9 AS 11.71.040(a)(3)(A).
10 AS 11.56.510(b) (providing that interference with official proceedings is a class B
felony); AS 12.55.125(d)(1) (setting the presumptive range for a first felony offender
convicted of a class B felony at 1-3 years).
11 AS 11.71.040(d) (providing that fourth-degree controlled substance misconduct is a
class C felony); AS 12.55.125(e)(1) (setting the presumptive range for a first felony offender
convicted of a class C felony at 0-2 years).
12 8 U.S.C. § 1101(a)(43)(S) (defining “aggravated felony” to include an offense relating
to obstruction of justice for which the term of imprisonment is at least 1 year); 8 U.S.C. §
1227(a)(2)(A)(iii) (providing that a non-citizen convicted of an aggravated felony after
admission is deportable).
13 8 U.S.C. § 1227(a)(2)(B)(i) (providing that non-citizens convicted of drug offenses
are deportable); 8 U.S.C. § 1229b(a)(3) (providing that certain long-time residents may apply
5 	2400

claimed this consequence was unduly harsh given that he had left the Dominican
Republic at a young age and had no real ties there.
The sentencing judge concluded that if he was not otherwise bound by the
presumptive range of 1-3 years for Perez’s interference with official proceedings
conviction, he might consider structuring Perez’s composite sentence to lessen the risk
that Perez would be deported. 	The judge therefore referred the case to the three-judge
panel for consideration of the non-statutory mitigating factor of “harsh collateral
consequences.” The judge recommended that the panel impose a sentence of 364 days
for the interference with official proceedings conviction and a total composite sentence
of 3 years and 71 days.
The three-judge panel found, as a factual matter, that Perez would be
deported if he received a sentence of 1 year or more for his interference with official
proceedings conviction. The panel assumed, without deciding, that deportation would
be a harsh collateral consequence in Perez’s case.14 It then adopted the sentencing
judge’s recommended sentence, concluding that it would be manifestly unjust to subject
Perez to inevitable deportation when it was possible to construct a composite sentence
that fully satisfied the Chaney15 criteria but still allowed Perez to apply for relief from
deportation.16
for cancellation of removal, unless they have been convicted of an aggravated felony).
14 The panel concluded that it was not required to reach this issue, based on its reading
of an order issued by this Court.
15 State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
16 The three-judge panel did not impose this sentence. 	In response to a petition for
review filed by the State, this Court had ordered the three-judge panel to decide on an
appropriate sentence but to not impose the sentence to avoid any potential double jeopardy
issues if the State prevailed on the claims raised in its petition for review. Court of Appeals
6 	2400

Alaska courts are not prohibited by federal law from imposing a sentence
aimed at influencing the defendant’s risk of deportation
The State argues that federal law preempts state sentencing law and that,
because the federal government has exclusive authority over deportation decisions, the
three-judge sentencing panel is prohibited from modifying a sentence for the purpose of
influencing the defendant’s risk of deportation.
The law of federal preemption is derived from the Supremacy Clause of
Article VI of the United States Constitution, which declares that federal law shall be “the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The
Alaska Supreme Court generally applies a two-step analysis to preemption questions:
First, we look to see whether Congress has overtly preempted
the 	subject 	matter 	the 	state 	wishes 	to 	regulate, 	either
explicitly, 	by 	declaring 	its 	intent 	to 	preempt 	all 	state
authority, or implicitly, by occupying the entire field of
regulation on the subject in question. Second, if neither kind
of direct preemption is found, we look to whether federal and
state law conflict in this particular instance.17
In this analysis, courts must assume that the historic police powers of the
states are not superseded “unless that was the clear and manifest purpose of Congress.”18
The State does not assert that Congress has enacted a statute expressly
forbidding state courts from considering deportation consequences at sentencing.
Order, File No. A-11195 (March 9, 2012).
17 Tlingit-Haida Reg’l Elec. Auth. v. State, 15 P.3d 754, 766 (Alaska 2001) (footnote
omitted).
18 Arizona v. United States,___ U.S. ___,132 S. Ct. 2492, 2501, 183 L. Ed. 2d 351
(2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152,
91 L. Ed. 1447 (1947)).
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Instead, it argues that Congress’s regulation of immigration is so pervasive that it
establishes Congress’s intent to displace any state action aimed at influencing who will
be deported.
The flaw in the State’s argument is that Congress expressly reserved a role
for state courts in determining when a crime is an “aggravated felony” under federal law.
Under the Immigration and Nationality Act,19 some crimes — including murder, rape,
and drug trafficking — are aggravated felonies no matter what sentence is imposed.20
Other crimes are aggravated felonies based on the maximum sentence that may be
imposed.21 But the offenses at issue in this case — crimes of violence and obstruction
of justice — only become aggravated felonies if a court actually imposes a sentence of
1 year or more.22 We therefore infer that for these offenses, Congress expected that state
courts would have a role in determining who qualified as an aggravated felon.23
The State argues that Congress did not intend these state sentencing
decisions to be motivated by a desire to influence the defendant’s risk of deportation.
To support this argument, the State observes that Congress in 1990 eliminated judicial
19 See Pub. L. No. 104-208 (Illegal Immigration Reform and Immigrant Responsibility
Act of 1996); 8 U.S.C. § 1101 et seq. (Immigration and Nationality Act).
20 8 U.S.C. § 1101(a)(43)(A)-(C), (E), (H), (I), (K),(L), (N), (O).
21 8 U.S.C. § 1101(a)(43)(J), (Q), (T). With respect to the offense of failure to appear,
characterization as an aggravated felony hinges on the length of the sentence that may be
imposed for the underlying offense. 8 U.S.C. § 1101(a)(43)(Q), (T).
22 8 U.S.C. § 1101(a)(43)(F), (S); 8 U.S.C. § 1101(a)(48)(B).
23 Courts are constrained, of course, by the penalty ranges established by the legislature.
But in any event, with respect to these crimes, it is state action — action by the state
legislature or the state court — that determines whether a defendant is convicted of an
aggravated felony under federal law.
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authority to make binding recommendations against deportation in criminal cases.
Beginning in 1917, when Congress first authorized deportation based on
certain criminal convictions, sentencing judges had the authority to make a “judicial
recommendation against deportation,” known as a JRAD, for non-citizens convicted of
crimes of moral turpitude, and this recommendation had the effect of binding the
executive branch to disregard the conviction as a basis for deportation.24 Congress first
circumscribed that procedure in 1952, and then completely eliminated it in 1990.25
But as the defendants point out, Congress did away with this judicial
authority as part of a broader effort to streamline the deportation of non-citizens
convicted of criminal offenses. 	The same 1990 legislation that eliminated the JRAD
procedure also limited the Attorney General’s authority to grant discretionary relief from
deportation to defendants convicted of aggravated felonies.26 And in 1996, Congress
eliminated the Attorney General’s statutory authority to grant this relief to aggravated
felons,27 leaving the Attorney General with only “limited remnants of equitable
discretion.”28
Even accepting that Congress intended to preempt state courts from issuing
binding decisions on deportation in criminal cases, that does not mean Congress intended
to prohibit state courts from considering the risk of deportation in deciding whether to
24 Padilla v. Kentucky, 559 U.S. 356, 361-62, 130 S. Ct. 1473, 1479 & n.3, 176 L. Ed.
2d 284 (2010) (citing former 8 U.S.C. § 1251(b)).
25 Id., 559 U.S. at 363, 130 S. Ct. at 1480.
26 State v. Gaitan, 37 A.3d 1089, 1101 (N.J. 2012).
27 Padilla, 559 U.S. at 363, 130 S. Ct. at 1480; Gaitan, 37 A.3d at 1101.
28 Padilla, 559 U.S. at 364, 130 S. Ct. at 1480.
9 	2400

impose a term of imprisonment that would lead to the defendant’s classification as an
aggravated felon. As already explained, Congress expressly reserved a role for state
courts in determining when a defendant has committed an aggravated felony for purposes
of federal immigration law; it reserved no such role for state courts in deciding whether
a criminal defendant should be deported. For this reason, courts have consistently ruled
that the federal government’s exclusive power over the administration and enforcement
of immigration laws deprives criminal courts of the authority to order a defendant to
leave the United States or to require a defendant to leave or remain outside the United
States as a condition of probation.29 By contrast, state courts have asserted their
authority to adjust a defendant’s sentence to lessen the risk that the defendant will be
deported.30 Moreover, the state courts that have directly considered the issue have
rejected the claim that federal law prohibits state courts from modifying a defendant’s
sentence to avoid an aggravated felony conviction.31
29 See, e.g., People v. Antonio-Antimo, 29 P.3d 298, 302-03 (Colo. 2000); Torros v.
State, 415 So.2d 908, 908 (Fla. Dist. Ct. App. 1982) (per curiam); Sanchez v. State, 508
S.E.2d 185, 187 (Ga. App. 1998); Rojas v. State, 450 A.2d 490, 492 (Md. Ct. Spec. App.
1982); State v. Pando, 921 P.2d 1285, 1286-88 (N.M. App. 1996); Gutierrez v. State, 380
S.W.3d 167, 173 (Tex. Crim. App. 2012); see generally David E. Rigney, Annotation,
Propriety, in criminal case, of federal district court order restricting defendant’s right to re
enter or stay in United States, 94 A.L.R. Fed. 619 (1989 & Supp.).
30 See State v. Lewis, 797 A.2d 1198, 1199, 1202-03 (Del. 2002); State v. Tinoco-Perez,
179 P.3d 363 (Idaho App. 2008); State v. Quintero Morelos, 137 P.3d 114, 116-18 (Wash.
App. 2006); State v. Svay, 828 A.2d 790, 794-95 (Me. 2003); Commonwealth v. Gevorgiyan,
No. 	2003-CA-002743-MR, 2005 	WL 	1125194, at *1-2 (Ky. App. May 13, 2005);
Commonwealth v. Gomes, unpublished, No. CA 971653, 1999 WL 1705908 at *1-2 (Mass.
Super. Oct. 14, 1999). 	But see State v. Mendoza, 638 N.W.2d 480, 483-84 (Minn. App.
2002) (ruling that deportation is never a proper sentencing consideration because it is too
uncertain).
31 Lewis, 797 A.2d at 1202; Quintero Morelos, 137 P.3d at 119.
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We acknowledge that two federal circuits have held that Congress intended
to prohibit federal courts from granting a downward adjustment in the federal sentencing
guidelines to lessen the likelihood of deportation.32 But we do not find those decisions
persuasive here. We note that Congress has given exclusive authority to the United States
Sentencing Commission to decide what factors can never be the basis for a downward
departure from the federal sentencing guidelines,33 and that the Sentencing Commission
has not acted to make deportation a forbidden, or even a discouraged, sentencing factor.34
The State claims that the sentencing hearings conducted by the three-judge
panel in Silvera’s and Perez’s cases were de facto immigration hearings. This claim is
not supported by the record. 	In both cases, the three-judge panel addressed state
sentencing considerations, and they did not purport, as the State argues, to substitute their
judgment for that of federal immigration officials based on “myriad humanitarian,
political, and national security factors.” 	It may be that federal immigration officials
weigh some of the same factors in deportation proceedings that state courts traditionally
consider at sentencing, but this potential overlap does not establish Congress’s clear and
manifest purpose to prohibit state courts from considering the totality of legally relevant
circumstances at sentencing — including the risk and consequences of deportation.
The State also argues that the decisions of the three-judge panel provided
Silvera and 	Perez with 	an 	exemption 	from 	deportation 	that Congress expressly
proscribed. Specifically, the State points to 8 U.S.C. § 1229(b), which bars the Attorney
32 United States v. Maung, 320 F.3d 1305, 1309 (11th Cir. 2003); United States v.
Aleskerova, 300 F.3d 286, 301 (2nd Cir. 2002).
33 Koon v. United States, 518 U.S. 81, 106-07, 116 S. Ct. 2035, 2050-51, 135 L. Ed. 2d
392 (1996).
34 See United States v. Martinez-Carillo, 250 F.3d 1101, 1107 (7th Cir. 2001).
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General from cancelling the deportation of a non-citizen who has been convicted of an
aggravated felony.35 But Silvera and Perez have not been convicted of aggravated
felonies; therefore, this provision does not bar them from any remedies available to them
under the Immigration and Nationality Act.
For these reasons, we reject the State’s claim that federal law prohibits the
three-judge sentencing panel from considering the harsh collateral consequences of
deportation and, if manifest injustice would otherwise result, from imposing a sentence
below the presumptive range based on that consideration.
The three-judge panel did not act outside its authority by considering
the non-statutory mitigating factor of “harsh collateral consequences”
The Alaska Legislature’s goal in enacting presumptive sentencing was to
reduce disparity in criminal sentencing, and it gave sentencing courts no authority to
impose a sentence below the presumptive range unless the defendant established at least
one of the mitigating factors listed in AS 12.55.155(d).36 To avoid manifest injustice in
cases in which these mitigating factors did not apply, the legislature created the “safety
valve” of the three-judge sentencing panel.37 If a sentencing judge finds that manifest
injustice will result from the failure to consider a mitigating factor not listed in AS
12.55.155(d), that judge by statute must refer the case to the three-judge panel.38 The
three-judge panel then independently reviews whether the defendant has established the
35 8 U.S.C. § 1229b(a)(3).
36 See Nell v. State, 642 P.2d 1361, 1369-70 (Alaska App. 1982); AS 12.55.005.
37 See State v. Wagner, 835 P.2d 454, 455-56 (Alaska App. 1992); Griffith v. State, 653
P.2d 1057, 1058 (Alaska App. 1982); AS 12.55.165-175.
38 AS 12.55.165(a).
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non-statutory mitigating factor by clear and convincing evidence.39 If the panel
concludes that the mitigating factor is proved, and that it would be manifestly unjust to
fail to adjust the presumptive range based on that factor, it must “assess the proper
sentence, applying the Chaney sentencing criteria and taking the mitigating factor into
consideration.”40
The State argues that this statutory scheme does not permit the three-judge
panel to impose a sentence below the presumptive range based on the harsh collateral
consequences of deportation. It argues that mitigating a sentence to lessen the risk that
a defendant will be deported defeats the legislative goal of promoting uniformity in
41 	42
sentencing 	and does not support the sentencing goals elucidated in State v. Chaney,
43 	44
AS 12.55.005, 	or article I, section 12 of the Alaska Constitution. 	The State also
asserts that, as a matter of law, a federal deportation decision can never be “manifestly
unjust.”
The Alaska Supreme Court and this Court have previously recognized that
the harsh collateral consequences of a criminal conviction, including deportation, are
39 Garner 	v. 	State, 	266 	P.3d 	1045, 	1047-48 	(Alaska 	App. 	2011) 	(citing 	AS
12.55.175(b)).
40 Garner, 266 P.3d at 1048.
41 Ch. 2, § 1, SLA 2005.
42 477 P.2d 441 (Alaska 1970).
43 AS 12.55.005 codifies the Chaney criteria.
44 Alaska Const. art. I, § 12 requires that criminal administration be based on “the need
for protecting the public, community condemnation of the offender, the rights of victims of
crimes, restitution from the offender, and the principle of reformation.”
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appropriate sentencing considerations.45 The State argues that this precedent is limited
to circumstances in which the defendant’s deportation is “nearly certain,”46 and that it
does not apply when deportation is a “mere possibility.” 	We have no reason to decide
in this case whether the “mere possibility” of deportation is a proper sentencing
consideration. 	The three-judge panel found that Silvera was at “substantial risk” of
deportation and that deportation was a certainty in Perez’s case. 	The State has not
challenged these findings, and we therefore treat these findings as true.
The State argues that a judicial finding that a defendant faces deportation
will always be impermissibly speculative, because immigration officials have broad
discretion in deciding whether to initiate deportation proceedings. 	To support this
argument, the State relies on State v. Mendoza,47 a Minnesota Court of Appeals case
holding that the prospect of deportation is always too uncertain to be a proper
consideration at sentencing.48
As a preliminary matter, we do not agree that the State has established that
immigration officials have broad discretion to decide whether to deport aggravated
felons. A policy memorandum issued by U.S. Immigration and Customs Enforcement,
which is part of the record in this case, indicates that the agency treats aggravated felons
as “priority 1” for deportation. 	And the United States Supreme Court has declared that,
under current law, deportation is “practically inevitable” for non-citizens who commit
45 Dale v. State, 626 P.2d 1062, 1064 & n.4 (Alaska 1980); State v. Tucker, 581 P.2d
223, 226 & n.5 (Alaska 1978); Chaney, 477 P.2d at 446 n.22; Silvera, 244 P.3d at 1150.
46 Dale, 626 P.2d at 1063.
47 638 N.W.2d 480.
48 Id. at 483-84.
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deportable offenses.49
We have no doubt that deportation will be speculative in some cases — but
it will be practically certain in others. For this reason, even if we were not bound by the
decisions of our supreme court holding that deportation is a proper consideration at
sentencing, we would not be persuaded by the reasoning of the Minnesota Court of
Appeals.50 We note that courts regularly consider the prospect that a defendant will be
deported in deciding whether to impose probation or certain conditions of probation.51
The State next argues that considering the harsh collateral consequences of
deportation is inconsistent with the Chaney goals of rehabilitation, general and specific
deterrence, affirmation of societal norms, and public safety, and also does not advance
the interests of crime victims, because these goals are “not impaired by enforcing
properly promulgated federal law.” This argument frames the analysis too narrowly; the
question is whether consideration of potential deportation consequences will, in
appropriate cases, lead to a sentence that better advances the Chaney sentencing goals.
49 Padilla, 559 U.S. at 364, 130 S. Ct. at 1480; see also United States v. Couto, 311 F.3d
179, 189-90 (2d Cir. 2002), abrogated on other grounds by Padilla, 559 U.S. 356, 130 S. Ct.
1473 (noting that under the 1996 amendments “an alien convicted of an aggravated felony
is automatically subject to removal and no one — not the judge, the INS, nor even the United
States Attorney General — has any discretion to stop the deportation”).
50 Even the Minnesota Supreme Court has not signed on to the Minnesota Court of
Appeals’ “broad assertion that ‘possible deportation because of immigration status is not a
proper consideration in criminal sentencing,’” leaving resolution of that question “for another
day.” State v. Kebaso, 713 N.W.2d 317, 324 n.7 (Minn. 2006).
51 See, e.g., People v. Espinoza, 132 Cal. Rptr. 2d 670, 673 (Cal. App. 2003); People v.
Hernandez-Clavel, 186 P.3d 96, 99 (Colo. App. 2008) (citing People v. Sanchez, 235 Cal.
Rptr. 264, 267 (Cal. App. 1987); Yemson v. United States, 764 A.2d 816, 819 (D.C. 2001);
State v. Martinez,165 P.3d 1050, 1055–57 (Kan. App. 2007). But see Mendoza, 638 N.W.2d
at 484.
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Alaska courts have already answered that question in the affirmative.52
The State contends that allowing courts to adjust a sentence to avoid the
risk of deportation contravenes the legislative goal of uniformity in sentencing. 	This
argument finds some support in our observation in our earlier decision in Silvera that a
non-citizen who is sentenced to a term below the presumptive range because of the
prospect of deportation may, in some instances, receive a more lenient sentence than an
identical citizen who is not subject to deportation.53 But the alternative — declining to
impose a sentence below the presumptive range based on this non-statutory mitigating
factor — also has the potential to defeat uniformity in sentencing, because a non-citizen
facing deportation may be subject to much harsher overall consequences than a citizen
convicted of the same offense.
The State argues that, because of the procedural fairness and prosecutorial
discretion built into the federal immigration system, it can never be manifestly unjust to
refrain from mitigating a sentence to lessen the risk of deportation. But this argument
ignores the statutory context in which an Alaska court’s finding of manifest injustice is
made. The question before Alaska courts is not whether it would be manifestly unjust
for the federal government to deport a defendant; the mandate of Alaska sentencing
courts is to determine whether a sentence within the presumptive range would be
manifestly unjust in light of the Chaney criteria and the totality of legally relevant
circumstances, 	including 	the 	non-statutory 	mitigating 	factor 	of 	“harsh 	collateral
52 Dale, 626 P.2d at 1064 & n.4.; Tucker, 581 P.2d at 226 & n.5; Silvera, 244 P.3d at
1150.
53 Silvera, 244 P.3d at 1150; see also Burleson v. State, 543 P.2d 1195, 1202 (Alaska
1975) (“Sentencing is an individualized process, and all persons committing the same crime
should not necessarily receive like sentences. Yet, theoretically, if two persons of identical
background commit the same offense, they should receive like punishment.”).
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consequences.”54 Federal immigration officials are not motivated or constrained by these
same considerations in deciding whether to deport a non-citizen. Therefore, even if the
federal government’s decision to deport a defendant is just in light of its statutory
mandate and priorities, a sentence that does not take account of the risk of deportation
might still be manifestly unjust under Alaska law.
We conclude that the three-judge panel has the statutory authority to impose
a sentence below the presumptive range based on the harsh collateral consequences of
deportation. If the three-judge panel were precluded from considering this factor as a
matter of law, there is a substantial risk that unduly harsh sentences would be imposed
on non-citizens in particular cases, defeating the legislature’s goal of uniformity in
sentencing.55
Considering 	deportation 	consequences 	does 	not 	violate 	the 	equal
protection clause
The State next argues that adjusting a sentence purely to avoid the
immigration consequences of a conviction violates the federal and state equal protection
clauses, because a non-citizen defendant in these circumstances might receive a more
lenient sentence than would be imposed on a citizen defendant. This claim was not raised
below, and the three-judge panel did not rule on it, so we review it for plain error.56
The State’s argument rests on the premise that Silvera and Perez received
54 See Campbell v. State, 594 P.2d 65, 67 n.5 (Alaska 1979); Juneby v. State, 665 P.2d
30, 37 (Alaska App. 1983).
55 See Smith v. State, 711 P.2d 561, 570-71 (Alaska App. 1985).
56 See Bobby v. State, 950 P.2d 135, 139 (Alaska App. 1997).
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favorable treatment based on their status as non-citizens.57 But as already explained, it
was the harsh collateral consequences they faced if they were deported, not their status
as non-citizens, that led the three-judge panel to conclude that sentencing the defendants
within the presumptive range would be manifestly unjust in these cases.
Moreover, to establish an equal protection violation, a party must show that
the persons being compared are similarly situated.58 Defendants who face harsh
collateral consequences as a result of deportation are not similarly situated to defendants
who do not face these harsh consequences. 	In imposing a sentence that satisfies the
Chaney 	criteria, 	a 	sentencing 	court 	must 	take 	the 	totality 	of 	legally 	relevant
circumstances into account, including the risk of deportation. 	As noted earlier, the
failure to account for these types of differences could result in a sentence that is unduly
harsh and therefore not proportionate to sentences imposed on other defendants.
Permitting sentencing courts to consider immigration consequences will not
invariably result in more lenient sentences for non-citizens. In some cases, sentencing
courts may determine that the defendant’s risk of deportation does not establish a non-
statutory mitigating factor and that referral to the three-judge panel is not warranted. In
other cases, the three-judge panel may reject the sentencing court’s finding of a non-
statutory mitigating factor, or it may conclude that, even though the factor was
established, it would not be manifestly unjust to sentence the defendant within the
presumptive range.
57 See Graham v. Richardson, 403 U.S. 365 (1971) (applying strict scrutiny to
classifications based on alienage).
58 Brandon v. Corrections Corp. of America, 28 P.3d 269, 275 (Alaska 2001) (noting
that the federal and state equal protection clauses “require equal treatment only for those who
are similarly situated”) (citation omitted).
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Even in cases where the three-judge panel departs from the presumptive
sentencing range based on the harsh collateral consequences of deportation, the result
will not necessarily be a sentence that is more lenient than the sentence that would be
imposed on a citizen. 	In Perez’s case, for example, the three-judge panel ultimately
proposed a composite sentence that was no different than what Perez would have
received if he did not face deportation.
We acknowledge that there may be some cases, such as Silvera’s, where the
sentence imposed by the three-judge panel is more lenient than the sentencing judge
would have imposed if the defendant did not face deportation. But even then, the critical
question for purposes of equal protection analysis is whether the sentence complies with
the Chaney criteria. Notably, the State has not challenged Silvera’s sentence as clearly
mistaken.59
We conclude that the State’s generalized equal protection concerns are
without merit and that its concerns about overly lenient sentences in particular cases are
most appropriately addressed in those individual cases through the existing legal
framework of the Chaney criteria and Alaska sentencing law.
Conclusion
Silvera’s sentence is AFFIRMED. 	Perez’s case is REMANDED to the
three-judge panel for a determination of (1) whether deportation is a harsh collateral
consequence qualifying as a non-statutory mitigating factor in his case and, if so, (2)
whether a sentence within the presumptive range would be manifestly unjust given that
harsh collateral consequence and the Chaney criteria. We do not retain jurisdiction.
59 See Appellate Rule 215(a)(3) (providing the procedural mechanism by which the State
can challenge a sentence as too lenient).
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