July 8, 2016 – Leopoldo Salas Gayton, convicted for homicide by intoxicated use of a vehicle, argued that a judge improperly considered his immigration status as a factor at sentencing. Recently, the Wisconsin Supreme Court ruled the judge did not.

The sentencing judge in Milwaukee County described Salas Gayton as an “illegal alien” who was “here illegally,” but said his immigration status was a “minor factor” or “minor character flaw.”  Salas Gayton, in a postconviction motion, argued that the judge’s comments indicated that the judge considered his immigration status as a factor.

But in State v. Salas Gayton, 2016 WI 58 (July 6, 2016), the supreme court unanimously upheld the sentence, rejecting a request for a new sentencing hearing. Two justices wrote a concurring opinion, and the chief justice did not participate.

Crime and Sentencing

In the early morning on New Year’s Day in 2011, Salas Gayton was driving drunk in the wrong direction on Interstate-94. He collided head-on with a vehicle near the Marquette University campus. The other driver, a 34-year-old mother, died at the scene.

A blood test revealed that Salas Gayton was driving with a blood alcohol concentration of 0.145, well over the legal limit of 0.08. He told police that he was not an American citizen. He said he entered the U.S. illegally from Mexico 13 years prior. He also told police officers he was driving the wrong way because he was trying to elude them.

Salas Gayton ultimately pled no contest on two counts, homicide by intoxicated use of a vehicle and operating without a license, causing death. At sentencing, the victim’s mother and a close friend asked for a very harsh sentence. So did the prosecutor.

The friend noted that Salas Gayton came to America and “availed himself of the privileges we provided to our citizens” without complying with the law. “Then he stepped up his lawlessness by killing a productive, beautiful and loving individual,” she said.

Salas Gayton’s attorney noted that his criminal record was virtually clean, that he worked to support himself and never received any government benefits or aid. When the attorney said immigration status is not relevant, the judge said “it goes to character.”

The court heard other statements before imposing the maximum prison sentence, 15 years, followed by seven years of extended supervision.

The judge said he wanted to send the message about driving drunk. And he recounted the recklessness of Salas Gayton’s act, driving at highway speeds and sideswiping other cars without stopping before colliding with the victim’s car.

The judge noted other factors before talking about Salas Gayton’s character, noting that his illegal status is a factor, “a minor factor, but it goes to your character.”

Majority Upholds Sentence

A circuit court denied Salas Gayton’s postconviction motion, which included an argument for a new sentencing, among other arguments. The circuit court denied the motion. The appeals court affirmed. The supreme court affirmed the appeals court.

In a majority opinion, Justice David Prosser noted that a sentencing decision is upheld “if it is a reasonable conclusion, based upon a consideration of the appropriate law and facts of record,” and sentencing courts must state their reasons on the record.

“When making a sentencing determination, a court must consider the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant, as well as any appropriate mitigating or aggravating factors,” Justice Prosser explained.

Prosser also listed 11 other aggravating or mitigating factors “that a circuit court might consider within its discretion,” including prior criminal conduct and “the defendant’s personality, character, and social traits.”

However, the majority opinion also notes that “[a] defendant’s nationality is one of several factors that a court may not rely upon when imposing a sentence that is consistent with the defendant’s due process rights.”

Salas Gayton claimed that the sentencing court relied on his nationality as a factor in imposing the sentence. The majority reiterated but rejected Salas Gayton’s argument: that use of terms like “illegal alien” “implicitly invoked his Mexican nationality and therefore was a thinly-veiled substitute for sentencing him based on his national origin.”

“The circuit court specifically noted that Salas Gayton’s immigration status did not ‘enter into [its evaluation of] the serious nature of the crime or the need to protect the community,’” wrote Prosser, quoting the sentencing record.

And the majority noted that immigration status could be considered as part of the character assessment, as prior decisions don’t “absolutely foreclose consideration.”

“Because Salas Gayton has previously engaged in conduct contrary to federal immigration law, his prior disregard for the law was an acceptable factor for the circuit court to include in its assessment of his character,” Justice Prosser wrote.

Concurrence

Justice Ann Walsh Bradley wrote a concurring opinion, joined by Justice Shirley Abrahamson, “to provide guidance in this ever-expanding area of the law.”

“[A]s the majority correctly observes, this court has repeatedly stated that nationality and national origin are improper sentencing factors,” Justice A.W. Bradley wrote.

“However, we have yet to provide similar guidance with respect to reliance on a defendant’s alienage as an aggravating factor at sentencing,” she wrote.

She concluded that courts may not rely on alienage – the condition of being a noncitizen – as an aggravating factor, since noncitizens still have constitutional rights.

But what about undocumented immigrant status? An undocumented immigrant is someone who lives in the U.S. without filing immigration papers. Justice A.W. Bradley said the law is unsettled. “Even without a definitive resolution, it is still apparent that the inquiry gives rise to significant thorny issues and caution must be observed.”

“[I]t is well settled that reliance on undocumented immigrant status as an aggravating factor at sentencing can raise significant constitutional concerns,” she wrote.

She noted that some undocumented immigrants may be victims of human trafficking or victims of domestic abusers who decline to file immigration papers on their behalf.

“In sum, relying on a defendant’s undocumented immigrant status as an aggravating factor may lead sentencing courts down a slippery slope,” she wrote.

“Care must be taken to ensure that sentences are individualized and do not rely on stereotypes, assumptions, or other inaccurate information.”

However, Justice A.W. Bradley also concluded that courts may consider the “act” of unlawful entry into the U.S. because courts may consider prior criminal conduct. But courts must have accurate information that entry to the U.S. was illegal.