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State v. Valdez

Supreme Court of Iowa

October 18, 2019

STATE OF IOWA, Appellee,

          Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

         The defendant appeals his sentence of incarceration, arguing the district court erred in declining to order probation.

          Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Patrick Jennings, County Attorney, and Kristine Timmins, Assistant County Attorney, for appellee.


         This case presents the question whether immigration status may be considered during sentencing. The defendant in this case is a Mexican national who pled guilty to and was convicted of a class "C" felony drug offense. He was placed on an immigration hold for likely deportation. At sentencing, the defendant sought probation, while the State requested incarceration. The district court imposed a prison sentence, expressing the view that it would not be feasible to order probation for someone who was going to be deported to Mexico. The defendant appeals.

         On appeal, we conclude, like the majority of other jurisdictions, that immigration status per se is not an appropriate sentencing consideration, but that immigration status may be taken into account to the extent it affects an otherwise relevant sentencing factor. We also conclude that on this record, the district court properly determined that probation would not be appropriate for someone whose probation would have to be supervised in Mexico. We therefore affirm the defendant's conviction and sentence.

         I. Facts and Procedural History.

         Guillermo Avalos Valdez was born in Mexico in 1981. In 1997, he entered the United States without legal permission. He settled in Merced, California.

         On December 24, 2017, Avalos Valdez was stopped on Interstate 29 in Woodbury County for driving eighty-four miles per hour in a seventy miles-per-hour zone. As two Woodbury County deputies approached the vehicle, they could smell marijuana coming from it. They removed Avalos Valdez and a female passenger from the vehicle. A subsequent search uncovered two hockey-sized duffle bags and two boxes with Christmas-themed wrapping paper containing a total of 184 pounds of marijuana, mostly divided into individually heat-sealed one-pound bags. A .45 caliber pistol with a loaded magazine and Grim Reaper handgrips was found under the front passenger seat. Avalos Valdez had a tattoo showing a Grim Reaper with a marijuana leaf, and the female passenger also had a Grim Reaper tattoo. The vehicle was registered to an "Iran Guillermo Avalos Valdez."

         Avalos Valdez was charged with possession with intent to deliver a controlled substance, more than fifty but not more than 100 kilograms of marijuana, a class "C" felony. See Iowa Code § 124.401(1)(c)(5) (2017). He was also charged with a drug stamp tax violation, a class "D" felony. See id. § 453B.12(2). Avalos Valdez waived speedy trial.

         On May 18, 2018, Avalos Valdez entered into a written agreement with the State to plead guilty to the possession with intent to deliver count, with the drug stamp tax violation being dismissed and the parties being free to argue sentence.

         A presentence investigation (PSI) report had been prepared. The report noted a prior California conviction in 2008 for vandalism. Avalos Valdez indicated that he had done general labor (although he had some back issues) and made approximately $12, 000 in 2017. Avalos Valdez told the interviewer that he was a regular marijuana user for his back issues and described "being on an adventure" when he was arrested. At the time of sentencing, Avalos Valdez was on a United States Immigration and Customs Enforcement (ICE) hold for potential deportation. The PSI report stated that on the Iowa Risk Revised (IRR) risk assessment tool, Avalos Valdez "scored in the low category for future violence and the low category for future victimization." According to the PSI report, "The IRR would further indicate the Defendant would be supervised initially at the low normal level of supervision should he be supervised in the community." However, the report also noted the quantity of marijuana involved and recommended that Avalos Valdez receive a term of incarceration.

         On May 22, the district court held a hearing for the purpose of plea taking and sentencing. During the guilty plea colloquy, defense counsel addressed the immigration consequences of Avalos Valdez's plea and explained, "[B]ecause this is an aggravated felony and a controlled substances offense, there would be deportation, mandatory detention, if he does have any removal proceedings." The court accepted Avalos Valdez's guilty plea and, with the consent of the parties, proceeded to sentencing. The State asked for imprisonment:

Your Honor, the State would be requesting that the defendant be sentenced to an indeterminate term of incarceration of ten years, that the minimum fine of $1, 000 plus the 35 percent surcharge be imposed and that that be suspended, and the other mandatory minimum requirements.
The State believes that that penalty is appropriate due to the fact that the defendant did have 180 pounds of marijuana in his possession at that time, which is a significant amount. The defendant also has no significant ties to the area as well as the immigration hold which will make it difficult for him to complete probation. The State believes that the presentence investigation recommendation of the prison sentence is the appropriate one in this case, and that's what we would request.
Defense counsel responded by asking for probation:
My client is asking that the Court grant him probation on this offense. The presentence report indicates that the Iowa risk revised assessment that was used indicates he has a -- he has a low category for future violence, a low category for future victimization, and that the IRR would indicate he could be supervised initially on a low/normal level in the community.
I realize he has an immigration hold, but he, essentially, only has one prior conviction for vandalism back in 2008; so he really doesn't have a criminal history to speak of at all.
With probation, I realize he's going to be taken into custody by immigration. He has the hold. It's likely he will be deported. I know there are times, at least in federal court, where we have made a term of probation "You shall not illegally re-enter the United States" so that if he ever comes back to the United States he will be in violation of his probation and he would be brought back to court.
He's requesting that he be given that opportunity to deal with his immigration and let them make that determination. Otherwise, other than the quantity involved here, if he was here as a United States citizen, I think that probation would be something that would definitely be a possibility. So we are asking that he be treated the same as someone else would and let immigration handle the immigration consequences that he is aware of.

         The court imposed a prison sentence as requested by the State. It stated,

I want to address some of your comments. The statement that you think this Court would give a U.S. citizen with the same record a suspended sentence is not accurate. 180 pounds of marijuana is one big deal, and it's -- he's a danger to the community. And he's also a flight risk. I don't think probation would be appropriate with pleading to this charge given his immigration status. He won't be available if I were to award probation, as I understand it. So I don't think probation is an appropriate sentence here.
Therefore, the Court finds that the sentence imposed will provide for the maximum opportunity for the defendant's rehabilitation, to protect the community from further offenses by this defendant and others. I've considered the nature of the offense committed and the contents of the presentence investigation report and the plea agreement.

         Avalos Valdez filed a notice of appeal on May 31. We retained the appeal.

         II. ...

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