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Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellants Silvera and Perez.
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge.
This consolidated case raises the question of whether the statewide three-judge sentencing panel has the authority to impose a sentence below the presumptive range to lessen, or eliminate, the risk that a defendant will be deported.
The State argues that federal law prohibits state courts from modifying a sentence for the purpose of influencing the federal immigration consequences of a conviction. It also argues that the Alaska Statutes do not authorize the three-judge panel to impose a sentence below the presumptive range based on the collateral consequences of deportation. Lastly, it argues that adjusting a sentence to lessen the risk of deportation violates the equal protection clause, because the non-citizen offender may receive a more lenient sentence than a citizen would based on the same conduct.
For the reasons explained below, we conclude that the three-judge panel has authority to impose a sentence below the presumptive range based on the harsh collateral consequences of deportation and that this authority is not preempted bye federal law.
With respect to Michael Silvera, the three-judge panel has already concluded that Silvera's potential deportation was a " harsh collateral consequence" that qualified as a non-statutory mitigating factor and has already imposed a sentence below the presumptive range. We therefore affirm Silvera's sentence.
With respect to Jose Manuel Perez, the three-judge panel did not directly decide whether deportation would qualify as a harsh collateral consequence. Instead, the panel assumed that Perez had established this non-statutory mitigating factor and concluded that consideration of this factor would justify imposing a sentence below the presumptive range for one of Perez's convictions. We therefore remand Perez's case to the three-judge panel for further proceedings.
Facts and proceedings
Michael Silvera has been a lawful resident of the United States since 1978. He served in the Armed Forces for more than six years and received an honorable discharge. In 2007, he was convicted of second-degree assault for assaulting a man with a knife during a drunken incident in a taxicab in Nome. As a first felony offender, Silvera faced a presumptive range of 1 to 3 years for that offense. Because his conviction was for a crime of violence, he also faced deportation as an " aggravated felon" if he was sentenced to 1 year or more.
Silvera asked his sentencing judge to refer his case to the three-judge sentencing panel for consideration of the non-statutory mitigating factor of " harsh collateral consequences."  Silvera asserted that he had a serious medical condition for which he received regular treatment from the Veterans Administration and that he would lose those benefits if he were deported. The sentencing judge ultimately ruled that it would be manifestly unjust not to consider the non-statutory mitigating factor of " harsh collateral consequences," and he referred Silvera's case to the three-judge panel.
The three-judge panel concluded that " harsh collateral consequences" is an appropriate non-statutory mitigating factor. It then found that Silvera had established that factor by showing: (1) that he was at substantial risk of deportation to Jamaica if he received a sentence of 1 year or more; (2) that he would lose his medical benefits if he were deported; and (3) that he would not be able to afford the medical care he needed, even assuming it was available in Jamaica, because his illness had prevented him from working. The panel also found that Silvera was not at high risk of reoffending. Based on these findings, the panel concluded that a sentence within the presumptive range would be manifestly unjust. It therefore imposed a sentence that would not subject Silvera to deportation as an aggravated felon: a sentence of 364 days to serve.
In 2011, Jose Perez was convicted of fourth-degree assault  and interference with official proceedings  for assaulting a police informant who was a witness against him in a drug case while he and the informant were incarcerated. Perez entered a plea to the underlying drug charge ...