John T. Floyd
John T. Floyd
Travels to All Criminal Courts In
Texas
Principal Office:
440 Louisiana,
Ste. 1900
19th Floor
Lyric Centre
Houston, TX 77002
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Federal and State Criminal Defense Top Attorneys: Criminal Defense - 2008 and 2009 HTexas
Serious Criminal Defense Throughout Texas
Experienced Criminal Defense Attorney Trials,
Sentencings and Appeals
Houston Criminal Defense Attorney
Serious Criminal Defense in Federal and
State Courts
Houston, Harris County, Throughout
Texas and the U.S.A
Top Criminal Lawyer 2008, 2009 -HTexas
Phone:713-224-0101
Toll Free:866-374-1327
E-mail: JF@criminal-lawyer-houston-texas.com
Serious Immigration Crimes
Contested Deportation
Hearings
Federal Appeals and Litigation
John T. Floyd III is an experienced attorney who defends individuals and businesses
charged with serious immigration crimes before all State and Federal courts
throughout the State of Texas. The John T Floyd Law Firm also represents individuals
contesting formal removal or deportation proceedings.
Prosecutions convictions and sentences for immigration offenses
According to the Justice Department’s Bureau of Justice Statistics, the
number of people prosecuted for immigration offenses in federal courts more than
tripled from 1996 through the year 2003, growing from 6,605 defendants in 1996
to 20,771 defendants in 2003. The number of prosecutions has continued
to increase since 9-11, and is expected to continue this course under current
US policy. The average punishment for individuals convicted of immigration
offenses in 2003 was 21.5 months in the Bureau of Prisons, followed by continued
detention in U.S. Citizenship &
Immigration Services (USCIS) custody or voluntary deportation.
The number of immigration offenders serving federal prison sentences increased
more than nine-fold between 1985 and 2003– from 1,593 to 14,891 adult men
and women—more than twice the rate of increase for the entire federal prison
population. A major portion of this growth was attributable to changes in federal
sentencing law that increased the likelihood of a convicted immigration felony
offender receiving a prison sentence, from 57 percent in 1985 to 81 percent in
2003. The growth was also the result of increased sentences and time actually
served, which increased from about 4 months in 1985 to 21.5 months in 2003.
Overall, 96 percent of immigration offense defendants are convicted when prosecuted
in the federal courts.
It is important to note that the people processed through the federal court
system for criminal prosecutions do not include aliens whom the INS detains
and deports for illegal entry or unlawful residence. During 2003 alone, federal
immigration officers officially removed 1,073,266 aliens from the U.S. Roughly,
ninety percent accepted an offer of voluntary deportation, and 10 percent were
removed following a formal hearing.
Offenses and Penalties
Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens.
Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation
of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging
or inducing unauthorized aliens to enter the United States, and engaging in a
conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2)
prohibits bringing or attempting to bring unauthorized aliens to the United States
in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).
Alien Smuggling: Subsection 1324(a)(1)(A)(i) makes it an offense
for any person who -- knowing that a person is an alien, to bring to or
attempts to bring to the United States in any manner whatsoever such person
at a place other than a designated port of entry or place other than as
designated by the Commissioner, regardless of whether such alien has received
prior official authorization to come to, enter, or reside in the United
States and regardless of any future official action which may be taken
with respect to such alien.
Domestic Transporting: Subsection 1324(a)(1)(A)(ii) makes it an
offense for any person who -- knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the United States in
violation of law, transports, or moves or attempts to transport or move
such alien within the United States by means of transportation or otherwise,
in furtherance of such violation of law.
Harboring: Subsection 1324(a)(1)(A)(iii) makes it an offense for
any person who -- knowing or in reckless disregard of the fact that an
alien has come to, entered, or remains in the United States in violation
of law, conceals harbors, or shields from detection, or attempts to conceal,
harbor, or shield from detection, such alien in any place, including any
building or any means of transportation.
Encouraging/Inducing: Subsection 1324(a)(1)(A)(iv) makes it an offense
for any person who -- encourages or induces an alien to come to, enter, or
reside in the United States, knowing or in reckless disregard of the fact
that such coming to, entry, or residence is or will be in violation of law.
Conspiracy/Aiding or Abetting: Subsection 1324(a)(1)(A)(v) expressly
makes it an offense to engage in a conspiracy to commit or aid or abet the
commission of the foregoing offenses.
Bringing Aliens to the United States: Subsection 1324(a)(2) makes
it an offense for any person who -- knowing or in reckless disregard of the
fact that an alien has not received prior authorization to come to, enter,
or reside in the United States, to bring to or attempts to bring to the United
States in any manner whatsoever, such alien, regardless of any official action
which may later be taken with respect to such alien.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted
on September 30, 1996, added a new 8 U.S.C. § 1324(a)(3)(A) which makes
it an offense for any person, during any 12-month period, to knowingly hire at
least 10 individuals with actual knowledge that these individuals are unauthorized
aliens.
Penalties: The basic statutory maximum penalty for violating 8 U.S.C. § 1324(a)(1)(i)
and (v)(I) (alien smuggling and conspiracy) is a fine under title 18, imprisonment
for not more than 10 years, or both. With regard to violations of
8 U.S.C. § 1324(a)(1)(ii)-(iv) and (v)(ii), domestic transportation,
harboring, encouraging/inducing, or aiding/abetting, the basic statutory
maximum term of imprisonment is 5 years, unless the offense was committed
for commercial advantage or private financial gain, in which case the maximum
term of imprisonment is 10 years.
In addition, significant enhanced penalties are provided for in violations
involving serious bodily injury or placing life in jeopardy. Moreover, if the
violation results in the death of any person, the defendant may be punished
by death or by imprisonment for any term of years.
Hiring Illegal Aliens: Title 8 U.S.C. §
1324a(a)(1)(A) makes it unlawful for any person or other entity to hire,
recruit, or refer for a fee, for employment in the United States an alien
knowing the alien is an unauthorized alien, as defined in subsection 1324a(h)(3).
Subsection 1324a(2) makes it unlawful for any person or entity, after hiring
an alien for employment, to continue to employ the alien in the United States
knowing the alien is or has become an unauthorized alien with respect to
such employment.
Subsection 1324a(f) provides that any person or entity that engages in a "pattern
or practice" of violations of subsection (a)(1)(A) or (a)(2) shall be fined
not more than $3000 for each unauthorized alien with respect to whom such a violation
occurs, imprisoned for not more than six months for the entire pattern or practice,
or both. The legislative history indicates that "a pattern or practice" of
violations is to be given a commonsense rather than overly technical meaning,
and must evidence regular, repeated and intentional activities, but does not
include isolated, sporadic or accidental acts. In addition, 18 U.S.C. § 1546(b)
makes it a felony offense to use a false identification document, or misuse a
real one, for the purpose of satisfying the employment verification provisions
in 8 U.S.C. §
1324a(b).
Ilegal entry, marriage or establishing a business for evading immigration
laws: Section 1325 sets forth criminal offenses relating to (1) improper
entry into the United States by an alien, (2) entry into marriage for the
purpose of evading immigration laws, and (3) establishing a commercial enterprise
for the purpose of evading immigration laws.
Illegal entry after excluded, deported, or removed: Subsection 1326(a)
now makes it an offense for any alien who has been denied admission, excluded,
deported, or removed, or has departed the United States while an order of
exclusion, deportation or removal is outstanding and thereafter enters, attempts
to enter, or is at any time found in the United States, unless such alien
received prior written consent from the Attorney General.
The basic statutory maximum penalty for reentry after deportation is
a fine under title 18, imprisonment for not more than 2 years, or both.
However, with regard to an alien whose "removal" was subsequent to
a conviction for commission of three or more misdemeanors involving drugs, crimes
against the person, or both, or a felony (other than an aggravated felony), the
statutory maximum term of imprisonment is 10 years. Moreover, if deportation
was subsequent to conviction for an aggravated felony, the statutory maximum
term of imprisonment is 20 years.
Although subsection 1326(a) now refers to any alien who has been "denied
admission, excluded, deported, or removed, or has departed the United States
while an order of exclusion, deportation, or removal is outstanding," subsections
1326(b)(1) and (b)(2), relating to aliens with prior criminal convictions, refer
only to aliens "whose removal was subsequent to a conviction."
Prohibited sexual activities with aliens: Section 1328 prohibits
three kinds of sexual activities with respect to aliens: (1) importing
aliens for prostitution, (2) holding aliens for prostitution, and (3) keeping,
maintaining, controlling, supporting, employing, or harboring aliens for
prostitution. Each of the three is a separate crime. See Dalton v. Hunter,
174 F.2d 633 (10th Cir.), cert. denied, 338 U.S. 906 (1949). The phrase, "in pursuance
of such illegal importation," was added to § 1328 in 1910 to establish
an interstate commerce nexus because the Supreme Court had held that the
statute infringed on state police powers. See Keller v. United States, 213
U.S. 138 (1909). Also, "alien"
was substituted for "woman or girl" to make it clear that the statute
applied to both sexes. The phrase, "or for any other immoral purpose," probably
includes only immoral purposes relating to sex, and not, for example, the
selling of babies. See United States v. Baker, 136 F. Supp. 546, 549-550
(S.D.N.Y. 1955).
Refusal to Depart: The Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) amended 8 U.S.C. §
1253 to make it a criminal offense for an alien to willfully fail or refuse
to depart from the United States within 90 days of a final administrative
or judicial order of removal. It is also an offense to willfully fail to
make timely, good faith application for travel documents necessary for departure,
to take action designed to prevent such alien's departure, or to willfully
fail or refuse to appear for removal. The basic penalty provision is a fine
under title 18, United States Code, imprisonment for up to 4 years, or both.
Enhanced penalties are applicable to aliens deportable based on criminal
convictions or security related grounds.
Fleeing or evading a checkpoint: The Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) added a new 18 U.S.C. § 758, which
makes it an offense to flee or evade a checkpoint operated by the Immigration
and Naturalization Service, or any other federal law enforcement agency,
in a motor vehicle and thereafter flee from Federal, State, or local law
enforcement agents in excess of the legal speed limit. Such offense is punishable
by a fine under title 18, imprisonment for not more than five years,
or both.
Marriage Fraud: Marriage fraud has been prosecuted, inter alia,
under 8 U.S.C. § 1325 and 18 U.S.C. §
1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325
by adding § 1325(c), which provides a penalty of five years imprisonment and
a $250,000 fine for any "individual who knowingly enters into a marriage
for the purpose of evading any provision of the immigration laws." Under
8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens,
including spouses, who are otherwise qualified for admission as immigrants,
must be admitted as such, without regard to other, ordinary numerical limitations.
The typical fact pattern in marriage fraud cases is that a U.S. citizen and
an alien get married. They fulfill all state law requirements such as medical
tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the
alien in order to entitle the alien to obtain status as a permanent resident
of the United States; the parties do not intend to live together as man and
wife. A legal issue arises where the parties tell the INS they are married,
and they subjectively believe they are telling the truth because they have
complied with state marriage requirements. The Supreme Court has ruled that
the validity of their marriage under state law is immaterial to the issue
of whether they defrauded INS. There have been situations where a bona fide
marriage turns sour but the alien induces the U.S. citizen spouse to maintain
the marriage as a ruse only as long as necessary for the alien to obtain
status as a permanent resident alien. There is a line of cases holding that
the viability of the marriage, if initially valid, is not a proper concern
of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian
v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However,
the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C.
§ 1186a, were designed, inter alia, to eliminate the Qaisi type loophole
by establishing a two-year conditional status for alien spouses seeking permanent
resident status, and requiring that an actual family unit still remain in
existence at the end of the two year period.
Passports and Other Entry Documents: Title 18 U.S.C.
§§ 1541 to 1546, provide criminal penalties for offenses related
to passports, visas, and related documents.
A passport is defined at 8 U.S.C. § 1101(a)(30) as "any travel
document issued by competent authority showing the bearer's origin, identity,
and nationality, if any, which is valid for the entry of the bearer into a foreign
country."
The Supreme Court has stated "[a passport] is a document, which, from
its nature and object, is addressed to foreign powers; purporting only to
be a request, that the bearer of it may pass safely and freely; and is to
be considered rather in the character of a political document, by which the
bearer is recognized, in foreign countries, as an American citizen; and which,
by usage and the law of nations, is received as evidence of the fact." See
Haig v. Agee, 453 U.S. 280, 292 (1981). Title 8 U.S.C. § 1104 entrusts
control of passport and visa matters to the Department of State, and establishes
a Passport Office and a Visa Office. Title 8 U.S.C. § 1185(b) makes
it unlawful for a United States citizen to attempt to depart from or enter
the United States without a valid passport, except as authorized by the President.
Section 211a of Title 22 authorizes the Secretary of State to issue United
States passports in foreign countries. Title 22 U.S.C. § 212 limits
issuance of United States passports to United States nationals only. Section
213 prescribes the method of applying for a passport, Title 22 U.S.C. §§.
213, 214a, and 215 control the fees for passports, 22 U.S.C. § 217a
limits the temporal validity of passports to no more than 10 years. State
Department regulations governing passports appear at 22 C.F.R. Part 51. See
59A Am.Jur.2d "Passports" for a general discussion of the law of
passports. The statutory maximum term of imprisonment for violations of
18 U.S.C. §§
1541 - 1546 is 10 years. However, 18 U.S.C. § 1547 provides that
notwithstanding any other provision of title 18, the maximum term of imprisonment
that may be imposed for passport and visa violations (except violations under
18 U.S.C. § 1545) if committed to facilitate a drug trafficking crime
is 15 years; and if committed to facilitate an act of international
terrorism is 20 years.
The statute of limitations for violations of 18 U.S.C.
§§ 1541 to 1544 is 10 years. See 18 U.S.C. §
3291.
False Statement in Application for Passport and Use of a Passport Fraudulently
Obtained: Section 1542 of Title 18 proscribes both false statements
made to obtain a passport, and use of any passport so obtained. The false
statement against which this section is most commonly used is the use
of a false name in obtaining a passport. United States citizens attempt
to obtain passports using false names in order to conceal criminal activity.
A problem of proof can arise when the passport applicant has routinely
used aliases and now seeks to obtain a passport in one of those aliases.
See, e.g., United States v. O'Bryant, 775 F.2d 1528 (11th Cir.1985);
United States v. Cox, 593 F.2d 46 (6th Cir.1979); United States v. Wasman,
641 F.2d 326 (5th Cir.1981), aff'd, 464 U.S. 932 (1984). Browder v. United
States, 312 U.S. 335 (1941), is the leading case on use of a passport,
the application for which contained a false statement. Browder obtained
a passport in his real name, but in the portion of the application asking
when his last passport was obtained, he falsely stated, "none." This statement was false because he had
previously obtained a passport in a false name. He then used the new passport
to enter the United States. The Supreme Court upheld Browder's conviction
under 18 U.S.C.
§ 1542 for innocent use of a passport secured by a false statement.
See 53 A.L.R.Fed. 507.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended
this statute to provide for enhanced penalties if the offense was committed
to facilitate an act of international terrorism or a drug trafficking crime.
Making or Using a Forged Passport: Section 1543 of Title 18 proscribes
the forgery, alteration, etc., of passports or the use of or furnishing to
another of a forged, altered, void, etc., passport or purported passport.
It applies to instruments issued or purportedly issued by foreign governments
as well as by the United States. See United States v. Dangdee, 616 F.2d 1118
(9th Cir. 1980).
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended
this statute to provide for enhanced penalties if the offense was committed
to facilitate an act of international terrorism or a drug trafficking crime.
Fraud and Misuse of Visas, Permits, and Related Documents, and False Personation:
The first paragraph of 18 U.S.C. § 1546(a) proscribes the forging, counterfeiting,
altering or falsely making of certain immigration documents or their use,
possession, or receipt. The second paragraph proscribes the possession, or
bringing into the United States of plates or distinctive papers used for
the printing of entry documents. The third paragraph makes it a crime, when
applying for an entry document or admission into the United States, to personate
another or appear under a false name. The fourth paragraph makes it a crime
to give a false statement under oath in any document required by the immigration
laws or regulations.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended
subsection 1546(a) to provide for enhanced penalties if the offense was committed
to facilitate an act of international terrorism or a drug trafficking crime.
Subsection 1546(b) makes it a felony offense to use a false identification
document, or misuses a real one, for the purpose of satisfying the employment
verification provisions in 8 U.S.C. § 1324a(b).
Offenses relating to nationality and citizenship: These offenses
include misuse of citizenship papers, 18 U.S.C. § 1423, impersonation or misuse
of papers in a naturalization proceeding, 18 U.S.C. § 1424, unlawful
procurement of citizenship, 18 U.S.C. § 1425, falsification of naturalization
papers, 18 U.S.C. §
1426, and unlawful sale of citizenship papers, 18 U.S.C.
§ 1427.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added
18 U.S.C. §§ 1425, 1426, and 1427 as RICO predicate offenses, as well
as authorizing wiretap authority for investigations of such offenses.
The IIRIRA also added a new 18 U.S.C. § 1015(e) which makes it a felony
offense to make a false claim of citizenship to obtain federal or state benefits,
and a new subsection 1015(f), which makes it a felony offense to make a false
claim of citizenship in order to register to vote in any federal or state election.
Moreover, the IIRIRA also added a new 18 U.S.C. § 611 which makes it an
offense, punishable by imprisonment for up to one year in prison, for an alien
to vote in a federal election.
Item | Value |
% of referrals prosecuted | 90.2 |
rank: % of referrals prosecuted | 41 |
% of referrals declined | 9.8 |
rank: % of referrals declined | 49 |
# prosecuted | 3,622 |
# of referrals with prosecution declined | 393 |
# referrals acted upon | 4,015 |
Federal Judicial District = Texas, S
Item | Value |
% convicted after referral | 75.7 |
district rank: % of referrals convicted | 49 |
% convicted after prosecution | 84.2 |
district rank: % prosecutions convicted | 77 |
# of referrals disposed of | 3,884 |
# prosecutions completed | 3,491 |
# convicted after prosecution | 2,940 |
Federal Judicial District = Texas, S
Item | Value |
% prison after referral | 68.2 |
district rank: % referrals with prison | 32 |
% prison after conviction | 90.0 |
district rank: % convictions with prison | 40 |
# of referrals disposed of | 3,884 |
# convicted after prosecution | 2,940 |
# sentenced to prison terms | 2,647 |
Federal Judicial District = Texas, S
Item | Value |
median prison term (months) | 15.0 |
rank: median prison sentence | 56 |
average prison sentence (months) | 22.0 |
rank: average prison sentence | 60 |
median probation sentence (months) | 0.0 |
average probation sentence (months) | 1.5 |
median fine received | $0 |
average fine received | $2,123 |
# convicted after prosecution | 2,940 |
# sentenced to prison terms | 2,647 |
Immigration Criminal Referrals Acted Upon: Prosecuted versus Declined 2003
Federal Judicial District = U.S.
Item | Value |
% of referrals prosecuted | 89.1 |
rank: % of referrals prosecuted | - |
% of referrals declined | 10.9 |
rank: % of referrals declined | - |
# prosecuted | 20,771 |
# of referrals with prosecution declined | 2,529 |
# referrals acted upon | 23,300 |
Federal Judicial District = U.S.
Item | Value |
% convicted after referral | 80.6 |
district rank: % of referrals convicted | - |
% convicted after prosecution | 90.7 |
district rank: % prosecutions convicted | - |
# of referrals disposed of | 22,717 |
# prosecutions completed | 20,188 |
# convicted after prosecution | 18,316 |
Federal Judicial District = U.S.
Item | Value |
% prison after referral | 65.6 |
district rank: % referrals with prison | - |
% prison after conviction | 81.3 |
district rank: % convictions with prison | - |
# of referrals disposed of | 22,717 |
# convicted after prosecution | 18,316 |
# sentenced to prison terms | 14,891 |
Federal Judicial District = U.S.
Item | Value |
median prison term (months) | 15.0 |
rank: median prison sentence | - |
average prison sentence (months) | 21.5 |
rank: average prison sentence | - |
median probation sentence (months) | 0.0 |
average probation sentence (months) | 3.4 |
median fine received | $0 |
average fine received | $1,319 |
# convicted after prosecution | 18,316 |
# sentenced to prison terms | 14,891 |