USA v. Rivera-Vasquez

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Plaintiff,
v.
LESMAN JEROAN RIVERA-VASQUEZ
Defendant.
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No. 4:25-cr-00503-JMD
SENTENCING OPINION
The Court issues this opinion to further explain in writing what the Court explained
earlier today in its oral order sentencing Lesman Rivera-Vasquez. The Court sentenced him
to triple the time the parties requested. This heavier prison sentence is necessary to promote
deterrence and respect for the law.
Rivera-Vasquez pleaded guilty to possessing ammunition while in the country
illegally, 18 U.S.C. § 922(g)(5). He also possessed a firearm, which likewise is unlawful for
illegal aliens. Id. “[I]n the usual sentencing,” the district court will “impose a sentence within
the [Guidelines] range.” Peugh v. United States, 569 U.S. 530, 542 (2013) (citation omitted).
Here, the Guidelines range is 10 to 16 months. But as part of the plea negotiation, the parties
jointly recommended a sentence far lower: time served, or just shy of 4 months.
That is too low. The Court is required by statute to impose a sentence high enough to
deter illegal immigration offenses and promote respect for the rule of law. 	18 U.S.C.
§ 3553(a)(2)(A)–(B). Those needs are considerable. The country experienced record-breaking
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rates of illegal immigration from 2021 through 2024. It is the antithesis of respect for the
law when millions of people—Rivera-Vasquez among them—continuously flout the law.
In crafting an appropriate sentence, the Court considers not only that surge of illegal
immigration, but also the Federal Government’s contribution to that surge. Rivera-Vasquez
does not dispute that the Federal Government’s decisions during that time fueled the record
rates of illegal immigration. Nor does he dispute that courts generally can and should take
factors like that into account. Indeed, he cites a case that expressly says courts may consider
the Federal Government’s nonenforcement actions when crafting a sentence. So the Court
considers 	all 	factors 	that 	have 	decreased 	deterrence 	and 	harmed 	compliance 	with
immigration laws.
The Court issues a sentence calibrated to help offset those previous problems. 	Not
only is the need to deter immigration offenses and promote respect for immigration law
considerable, but immigration offenses harm innocent people. Rivera-Vasquez put the lives
of two officers at risk when he ran a stop sign, causing an accident with their police car. Had
he not flouted federal law for years when he stayed in the country illegally, ignoring an order
of removal, he never would have caused that accident. 	All these factors support a steeper
sentence: at the high end of the Guidelines range or even above it.
At the same time, the Department of Justice argues that the prospect of lower
sentences facilitates plea negotiations, leading to more deportations by saving prosecutors
from expending resources on a trial. All this, the Department says, furthers deterrence. The
Court must balance the need for efficient resolution with the considerable need to deter
immigration offenses and promote respect for the rule of law. 	For this reason, the Court
issues a sentence within the Guidelines that is three times what the parties requested, but
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about half of what the Court would have imposed had Rivera-Vasquez not pleaded guilty. In
addition to a term of supervised release and a fine that were discussed orally at sentencing,
the Court sentences Rivera-Vasquez to 12 months and 1 day of imprisonment. The Federal
Government has committed to deporting him after he completes his sentence.
Background and Analysis
Rivera-Vasquez 	pleaded 	guilty 	to 	possessing 	ammunition 	while 	“illegally 	or
unlawfully in the United States,” 18 U.S.C. § 922(g)(5). 	He also unlawfully possessed a
firearm. To facilitate that guilty plea, the Department agreed that it would ask the Court to
sentence Rivera-Vasquez only to time served. 	The Department generally is bound by the
promises it makes in plea agreements. Santobello v. New York, 404 U.S. 257 (1971). Now,
at the time of sentencing, Rivera-Vasquez has served between 3 and 4 months.
In October, the Court issued an order questioning whether the parties’ request for
such a low sentence would be consistent with the obligation to impose a sentence high enough
to deter illegal immigration offenses. 	ECF 18. 	The Court cited Supreme Court precedent
determining 	that 	the 	government’s 	enforcement 	or 	nonenforcement 	decisions 	affect
deterrence. 	The Court cited General Land Office v. Biden, 722 F. Supp. 3d 710 (S.D. Tex.
2024), which held that the Federal Government violated the law from 2021 until 2024 and
found that this violation increased illegal immigration. ECF 18 at 3. And the Court cited
government statistics stating that the rate of illegal border crossings plummeted this year
after the Federal Government changed its policies. 	The Court asked the parties to brief
whether, in light of the Federal Government’s past actions, the need for deterrence requires
the Court to issue a higher sentence.
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In his response brief, Rivera-Vasquez never disputes that courts may consider
previous nonenforcement actions of the Federal Government when determining the length of
a sentence. 	Indeed, he cites a decision that says “the federal government’s policy of non-
enforcement” is relevant to crafting an appropriate sentence. United States v. Aguilar-Calvo,
945 F.3d 464, 467 (6th Cir. 2019). He does not dispute that the Federal Government’s actions
from 2021 through 2024 fueled the increase in immigration offenses. And he does not contest
that heightened sentences can increase general deterrence. 	Rivera-Vasquez just does not
think any amount of increased deterrence here would be meaningful because, in his words,
“the policies and rhetoric of the Trump administrative have already deterred unlawful
entries” (emphasis in original).
The Court agrees with Rivera-Vasquez that the Federal Government’s new policies
have greatly increased deterrence. 	But that does not mean courts have no role in further
fostering deterrence. To the contrary, both the Executive Branch and courts are critical to
deterrence because it is the Executive Branch that brings prosecutions and it is the courts
that select and impose sentences.
Harsher sentences promote greater deterrence than nominal sentences. One element
of Rivera-Vasquez’s offense—and of many other criminal immigration offenses—is unlawful
presence in the United States. E.g., § 922(g)(5). By definition, a person cannot commit this
offense unless he is in the country “illegally or unlawfully.” 	Id. 	So anything that deters
illegal immigration (or encourages self-deportation) necessarily deters crimes like this one—
as well as other immigration crimes, such as the crime of “elud[ing] examination or inspection
by immigration officers” while in the country, 8 U.S.C. § 1325. Countless persons who have
committed immigration offenses remain in the country. 	And countless persons—illegally
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present—are at risk of committing further immigration-related offenses. The prospect of a
substantial criminal sentence may deter those individuals and encourage them to comply
with the law through self-deportation.
Harsher sentences likewise can promote the rule of law. 	In addition to requiring
courts to issue sentences high enough to deter criminal conduct, 18 U.S.C. § 3553(a)(2)(B),
Congress directed courts to issue sentences high enough to “promote respect for the law,”
§ 3553(a)(2)(A). 	For years, Rivera-Vasquez flouted the law. 	He spent his entire adult life
violating federal immigration laws, which is one of the elements at issue in the offense to
which he pleaded guilty. The Court cannot issue a sentence of less than 4 months after his
lengthy misconduct.
At the same time, a sentence that is too high can hinder deterrence because it can
reduce any incentive for plea negotiations, decreasing the number of cases that courts and
the Department can process. 	The Department notes that the prospect of a lower sentence
may 	hasten 	“deportation 	and 	removal” 	by 	encouraging 	plea 	agreements. 	And 	the
Department notes that Rivera-Vasquez quickly pleaded guilty and waived indictment,
expressing acceptance of responsibility. Courts should hesitate to issue sentences that could
undermine future plea bargains, because plea bargains “are important components of this
country’s criminal justice system.” 	Blackledge v. Allison, 431 U.S. 63, 71 (1977). 	They
“conserve vital and scarce resources,” id., and as the Department points out, they can
facilitate increased deportation. 	It is not just the overall sentence that matters for
deterrence. The number of successful prosecutions also matters.
The Court can accomplish both goals. The requested sentence of not even 4 months
is too nominal to deter criminal immigration offenses to any meaningful extent or to promote
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respect for the rule of law. But the Court agrees that a sentence should adequately consider
Rivera-Vasquez’s decision to plead guilty because guilty pleas free resources for law
enforcement. Balancing the need not to interfere with plea bargains with the considerable
need to impose a higher sentence that promotes deterrence and the rule of law, the Court
concludes that a sentence within the Guidelines range is appropriate: 12 months and 1 day.
This sentence serves the Department’s objectives of encouraging plea agreements.
Had Rivera-Vasquez not pleaded guilty, his Guidelines range would have been 15 to 21
months. 	And based on the aggravating factors—including his years-long, continuous
violation of immigration laws—the Court believes a sentence at the high end (21 months) or
even above the Guidelines range would have been appropriate had Rivera-Vasquez not
accepted responsibility, pleaded guilty, and waived indictment. Indeed, the Court notes that
Rivera-Vasquez went above and beyond most criminal defendants by waiving indictment as
well as pleading guilty. 	The Court credits both those decisions. 	His plea decision and
indictment waiver mean he receives substantial leniency compared to the alternative
sentence the Court would have imposed.
This sentence also fosters deterrence, promotes respect for the rule of law, and
accounts for the aggravating factors. Four months is too low in light of the heightened need
to deter illegal immigration offenses and promote respect for immigration law. By illegally
remaining in this country, Rivera-Vasquez put the lives of two police officers at risk. He was
caught only because he ran a stop sign and caused a car accident that sent two officers to the
hospital. 	Fortunately, the record reflects that both officers are expected to make a full
recovery. But they faced potential loss of life because Rivera-Vasquez refused, for years, to
comply with immigration laws. A Guidelines sentence adequately accounts for these factors.
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In response to the Court’s order to brief this issue, Rivera-Vasquez raises several
arguments against the Court’s considering the effects of the previous actions of the Federal
Government. Each one fails.
1. Rivera-Vasquez first argues that a sentence that considers the effects of the Federal
Government’s 	actions 	from 	2021 	through 	2024 	would 	violate 	the 	party-presentation
principle. 	Under that principle, courts “normally decide only questions presented by the
parties”; it is generally improper to “[e]lect[ ] not to address the party-presented controversy”
and instead to pursue a “contrary theory” that amounts to a “radical transformation” of the
case. United States v. Sineneng-Smith, 590 U.S. 371, 376, 79–80 (2020) (citations omitted).
The Court has done no such thing. Both parties agree that the Court must determine
what sentence would “afford adequate deterrence to criminal conduct” and “promote respect
for the law.” § 3553(a)(2)(A)–(B). The Court is assessing all facts relevant to these statutory
provisions. See Pepper v. United States, 562 U.S. 476, 488 (2011) (concluding that courts may
consider the “widest possible breadth of information” relevant to a defendant). 	Rivera-
Vasquez even cited a case that agrees that “the federal government’s policy of non-
enforcement” is relevant to crafting an appropriate sentence. Aguilar-Calvo, 945 F.3d at 467.
The difference is stark between the “radical transformation” in Sineneng-Smith, where the
court ignored the issue presented by the parties, and the Court’s full assessment here of
statutory factors both sides agree must be assessed.
Rivera-Vasquez 	also 	misperceives 	how 	sentencing 	differs 	inherently 	from
constitutional challenges like in Sineneng-Smith. 	Outside the sentencing context, courts
generally stick to the issues raised by the parties. But inside the sentencing context, the law
requires courts to conduct an independent investigation. Federal Rule of Criminal Procedure
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32(c) imposes this “[r]equire[ment]” on probation officers, who are officers of the judiciary, 18
U.S.C. § 3602. 	Similarly, courts can conduct independent investigations that go beyond
presentence investigation reports and can require a defendant to undergo a psychiatric or
psychological examination, even if neither the government nor the defendant wants one.
§ 3552(b)–(c).
It is thus not surprising that the Supreme Court says courts may consider facts not
pressed by the parties. “[T]here will be some cases in which the factual basis for a particular
sentence will come as a surprise to a defendant or the Government.” Irizarry v. United States,
553 U.S. 708, 715 (2008). When that potential arises, “[s]ound practice dictates that judges
in all cases should make sure that the information [is] provided to the parties in advance of
the hearing.” Id.; see also Rule 32(f) (requiring an opportunity for defendants to object to the
findings of the probation officers). 	That is what this Court did on October 31 by notifying
both parties that the Court anticipated considering these facts at sentencing. 	The Court
timely notified the parties that certain facts might be relevant to sentencing and gave the
parties an opportunity to discuss or dispute those facts. 	Rivera-Vasquez did not dispute
them.
2. Rivera-Vasquez next contends that “an individual judge’s policy preferences should
not influence sentencing.” Well said. The Court agrees. That is why the Court is pursuing
Congress’s policy preferences. 	Congress—not the courts—prohibited illegal aliens from
certain acts, including possessing firearms or ammunition or entering the country without
authorization. 	And Congress instructed courts to issue sentences high enough to deter
violations of these policy preferences and promote respect for the law. § 3553(a)(2)(A)–(B).
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3. Rivera-Vasquez similarly notes that that the Executive Branch gets to “decide how
to prioritize and how aggressively to pursue legal actions against defendants who violate the
law.” United States v. Texas, 599 U.S. 670, 678 (2023) (citations omitted). True enough. But
unlike in United States v. Texas, here the Federal Government has brought a prosecution.
When the Executive Branch does so, it is up to courts to determine the severity of the
sentence. 	Courts must impose sentences high enough to afford adequate deterrence.
§ 3553(a)(2)(B). 	And Rivera-Vasquez cites Aguilar-Calvo, which itself says courts may
consider the nonenforcement decisions of the Federal Government when crafting a sentence.*
4. Finally, Rivera-Vasquez argues that the Federal Government’s actions from 2021
through 2024 are irrelevant “in the context of this case.” 	Not so. 	As explained above,
unlawful presence in the country is a necessary element of the crime to which Rivera-Vasquez
has pleaded guilty, and unlawful presence undermines respect for the law. By definition, a
person cannot commit Rivera-Vasquez’s offense (or many other immigration offenses) unless
the person is in the country unlawfully. Yet Rivera-Vasquez does not dispute the findings of
other courts that the Federal Government’s actions from 2021 through 2024 fueled illegal
* Aguilar-Calvo said federal nonenforcement could lead a district court to issue a less-
severe sentence with respect to marijuana laws “given widespread enactment of state laws
decriminalizing, legalizing, and regulating marijuana.” 945 F.3d at 467. Under that logic,
federal nonenforcement pulls in the opposite direction. 	Unlike marijuana, where nearly
every State has deregulated to some degree, States have often and recently clamored for more
enforcement of immigration laws. E.g., United States v. Texas, 599 U.S. 670 (2023) (multi-
State challenge to Federal Government nonenforcement policy); Texas v. United States Dep’t
of Homeland Sec., 756 F. Supp. 3d 310, 353 (E.D. Tex. 2024) (16-State challenge to a policy
of the Federal Government to release certain illegal aliens in the country); Texas v. United
States Dep’t of Homeland Sec., 123 F.4th 186, 192 (5th Cir. 2024) (granting an injunction to
a State against the Federal Government after federal officials removed border barriers “for
no apparent purpose other than to allow migrants easier entrance further inland”); Indiana
v. Mayorkas, No. 1:23-cv-00106-DMT-CRH, 2024 WL 5358932 (D.N.D. 2023) (18-State
challenge to asylum rules that the States asserted would increase the number of unlawful
aliens in the United States).
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immigration. 	E.g., Gen. Land Off., 722 F. Supp. 3d at 725–26. 	Indeed, he concedes that
federal enforcement or nonenforcement affects rates of illegal immigration. Those initiatives
are highly relevant to general deterrence. See, e.g., Kane v. New Jersey, 242 U.S. 160, 167
(1916) (“[The] ability to enforce criminal and civil penalties for transgression is an aid to
securing observance of laws.”).
Rivera-Vasquez also focuses 	on specific 	deterrence at 	the expense of 	general
deterrence. 	He asserts that the Federal Government’s actions and inactions from 2021
through 2024 had nothing to do with his decision to remain in the country even though he
was required to deport during that time. The Court doubts that assertion, but even assuming
it were true, Rivera-Vasquez does not (and cannot) dispute that the Federal Government’s
actions and inactions during that time affected the decisions of similarly situated people to
stay in the country. 	Many of those individuals are still in the country. 	And some may be
deterred from unlawfully remaining in the country if courts issue higher sentences.
Conclusion
Balancing the Department’s compelling need to ensure speedy plea negotiations with
the equally compelling need to issue a sentence high enough to deter, high enough to promote
respect for the law, and high enough to account for the unnecessary harms Rivera-Vasquez
imposed on police officers—and considering the other factors listed in § 3553—the Court
issues a sentence of 12 months and 1 day, which is within the recommended Guidelines
range. That sentence is about 3 times the recommendation of the parties, and about half of
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what would be warranted had Rivera-Vasquez not accepted responsibility by pleading guilty
and waiving indictment.
Dated this 17th day of December, 2025
__________________________________
JOSHUA M. DIVINE
UNITED STATES DISTRICT JUDGE
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