In U.S. v. Velasquez, No. 06-16637 (April 21, 2008), the Court vacated a nine-month sentence imposed on a defendant for violation of supervised release.
The defendant pled guilty and was sentenced to time served and two years supervised release for use of a counterfeit visa for entry into the United States, in violation of 18 U.S.C. § 1546(a). While on supervised release, the defendant was arrested for driving with a suspended licence. Though recognizing the "de minimus" nature of this supervised release violation, the district court imposed the high-end guideline range sentence of nine months, because of its concern that a person in the United States illegally should not be allowed to "roam free." The district court also questioned the wisdom of immigration authorities in letting an illegal alien out of custody, on bond, while his immigration asylum application was pending.
The Court vacated the sentence, pointing out that Congress vested authority to detain removable aliens in the United States, not in the courts. "[A] judge may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal view of immigration policy." http://www.ca11.uscourts.gov/opinions/ops/200616637.pdf
