What is the maximum sentence under section 1326 of the Immigration Code when an alien has been arrested and deported?

MultiRegion, United States of America

The following excerpt is from U.S. v. Perez-Covarrubias, 983 F.2d 1079 (9th Cir. 1993):

8 U.S.C. 1326(a) provides that any alien who has been arrested and deported and thereafter reenters the United States shall be imprisoned for not more than 2 years. 8 U.S.C. 1326(b)(1) and (2) provides respectively that where the alien's deportation was subsequent to a felony conviction, imprisonment shall not exceed 5 years, and subsequent to an aggravated felony conviction, imprisonment shall not exceed 15 years. We recently have held that where an indictment omits the prior conviction element of subsection 1326(b), a defendant has only been charged under section 1326(a), simple reentry after deportation, and is therefore subject to a maximum of 2 years' imprisonment. United States v. Campos-Martinez, 976 F.2d 589, 591-592 (9th Cir.1992). In so holding, we explained that "subsections 1326(a) and 1326(b)(1) describe two different crimes with different elements and maximum sentences. Therefore, to charge and sentence a person under section 1326(b)(1), the indictment must include the element that the person was convicted of a prior felony." Id. at 592.

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