The Fourth Circuit has recognized that alienage is an improper basis for a sentence and violates due process.
The Sentencing Guidelines also expressly prohibit a sentencing court from considering a defendant's national origin when calculating a term of imprisonment.
In U.S. v. Salama, the Fourth Circuit held that it was harmless error for district court to comment about the defendant's alien status based on the particular facts of the case, however, the appellate court did note that the remarks were inappropriate.
In U.S. v. Munoz, the United States Court of Appeals for the Fourth Circuit determined that a district court could consider a defendant's background, characteristics and conduct, thus, a court may refer to a defendant's alienage.
For example, a court may make a reference to a defendant's national origin to deter similar criminal conduct by others of the same ethnic background, as long as alienage is not the basis of the sentence.
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The Munoz Court held that the connection between the targeted group for deterrence and the individual being sentenced must be the offense conduct and not the individual's national origin.

This issue will again be examined by the Fourth Circuit Court of Appeals in its December 2009 term.
It will be interesting to see how the appellate court treats alien status as a factor in sentencing proceedings in light of the Supreme Court's decision in Booker.
Other Circuit Courts, like the Second Circuit and Eighth Circuit Court of Appeals, have held that even the appearance that a sentence reflects a defendant's race, national origin, or alienage requires that the sentence be reversed.
In the initial brief and reply brief, the appellant argues that the Fourth Circuit should adopt a similar rule.
The government argues in its appellate brief that any error was harmless.

In Federal cases, a defendant is sentenced in a separate court hearing that is set well after a guilty plea or guilty verdict after a jury trial.
During this hearing, the district court calculates a defendant's guideline range, address objections to the pre-sentence investigation report, decides whether any sentencing enhancements are appropriate, and if a downward or upward departure should be granted.
Federal sentencing proceedings are complicated and as a result, the District Court often commits reversible error during these proceedings.
The appellate court will reverse a defendant's sentencing when the District Court improperly applies the law or violates a defendant's constitutional rights.

When filing a federal appeal, an appellate lawyer uses case law precedent of the Circuit Court and U.S. Supreme Court to argue the defendant's position.
However, in cases that present an issue that has not been addressed in that particular court of appeals, a federal appellate attorney will cite cases from other circuit courts to support their argument.
It will be interesting to see what questions the Fourth Circuit will ask at oral arguments in Richmond, VA in December, and whether the Fourth Circuit will join the Second and Eighth Circuit in holding that even the appearance of ethnic or racial bias by a district court when imposing a sentence is unconstitutional, which would require a reversal and remand for a new sentencing hearing.

The Mace Firm handles federal appeals in the Fourth Circuit Court of Appeals as well as the Eleventh Circuit Court of Appeals.
Our appellate attorneys have a great deal of experience in interpreting case law precedent and applying the sentencing guidelines in federal courts.
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