from the Iowa District Court for Woodbury County, John D.
defendant appeals his sentence of incarceration, arguing the
district court erred in declining to order probation.
M. Wadding of Sease & Wadding, Des Moines, for appellant.
J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Patrick Jennings, County Attorney, and Kristine
Timmins, Assistant County Attorney, for appellee.
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.
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.
Facts and Procedural History.
Avalos Valdez was born in Mexico in 1981. In 1997, he entered
the United States without legal permission. He settled in
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 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.
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.
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.
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
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
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
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.
court imposed a prison sentence as requested by the State. It
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
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.
Valdez filed a notice of appeal on May 31. We retained the