In a recent Fifth Circuit case, the court of appeals affirmed a defendant's 46-month sentence for illegal re-entry over his argument for a more lenient sentence due to death threats. The 46-month sentence was the bottom of the prescribed guideline range.
Diaz Sanchez pleaded guilty to illegal re-entry. The probation office calculated a guidelines range of 46 to 57 months, which rested partly on a 16-level enhancement for aggravated assault. He requested a variance below the range, arguing that members of the Mara Salvatrucha ("MS 13") gang in El Salvador had threatened him and his family with death, which caused him to flee to the United States.
The district court adopted the findings of the PSR, and let the government and defendant argue their respective positions. The defense emphasized the death threats, and argued for a 24-month sentence.The government argued Diaz Sanchez should receive a middle-to-top guidelines sentence because virtually everybody who was anybody in El Salvador had problems with MS 13. The court found a middle ground with 46 months.
The court of appeals held the district court didn't commit any procedural or substantive error in handing down its sentence. Per Rita, it was presumptively reasonable because it was within the probation office's prescribed guidelines.
The case highlights somewhat the difficulties defendants face overcoming the psychological pull of prescribed guideline ranges. If death threats can't do it, it's hard to imagine just what will.
United States v. Diaz Sanchez, No. 12-20166, Fifth Circuit Court of Appeals