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State v. Alire1/28/2005
Appellant Andres Castillo Alire was convicted after a jury trial of two counts of aggravated driving under the influence of an intoxicant (DUI). On appeal, Alire maintains that the court both improperly considered his nationality and denied him his right to a jury trial as to aggravating circumstances when it sentenced him to aggravated, concurrent sentences of six years of imprisonment. We affirm.
In rejecting the presumptive term of 4.5 years, the trial court specified that it had considered the following aggravating circumstances: Alire's prior felony conviction, the fact that he absconded before trial, and the degree of his intoxication. None of the facts underlying any of those aggravating circumstances was found by the jury that found Alire guilty of the offenses. At the time of sentencing, the court also commented that, " pparently, Mr. Alire feels that what he is here to do is come to the United States illegally, drive drunk and endanger the citizens of this country through his intoxication repeatedly and make his living distributing 50 kilograms or more of marijuana, an illegal substance."
Trial Court's Reference to the Defendant's Immigration Status
Based on the above remarks, Alire argues that the trial court improperly considered his nationality when it sentenced him to aggravated terms of imprisonment. But the court did not refer to Alire's nationality, but rather, his immigration status. Nor did the court mention either Alire's nationality or his immigration status when it articulated the aggravating circumstances it had considered in imposing an aggravated prison terms. In fact, the court made the comments in question after it had already rejected the presumptive term of 4.5 years based on three aggravating circumstances, none of which referred to Alire's nationality.
Even if the trial court had considered Alire's immigration status as an aggravating factor, it would not have been improper in the specific context of this case. Entering the United States without valid immigration status is a violation of the laws of this country. See 8 U.S.C. § 1325. Section 13-702(C)(21), A.R.S., permits a sentencing judge to consider " ny other factor that the court deems appropriate to the ends of justice." Under that provision, a trial court would be permitted to consider a defendant's disregard for the law in entering the country illegally as an aggravating circumstance.
Moreover, the cases Alire relies on in support of his argument that a court may never consider a defendant's immigration status as an aggravating factor do not stand for that proposition. In Yemson v. United States, 764 A.2d 816, 819 (D.C. 2001), quoting United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986), the court concluded that, " ecause even an illegal alien has a right to due process, a court imposing sentence in a criminal case may not treat the defendant more harshly than any other defendant 'solely because of nationality or alien status.'" But that court also stated,
his does not mean, however, that a sentencing court, in deciding what sentence to impose, must close its eyes to the defendant's status as an illegal alien and his history of violating the law, including any law related to immigration . . . if that information may reasonably bear on the sentencing decision.
Yemson, 764 A.2d at 819. Thus, Yemson supports the conclusion that the court properly could consider Alire's illegal entry into the United States to the extent it constituted evidence of unlawful activity.
In the other three cases Alire relies on, the sentencing judges at least appeared to have improperly considered the defendant's nation
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