State of Iowa v. Guillermo Avalos Valdez ( 2019 )


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  •               IN THE SUPREME COURT OF IOWA
    No. 18–0955
    Filed October 18, 2019
    STATE OF IOWA,
    Appellee,
    vs.
    GUILLERMO AVALOS VALDEZ,
    Appellant.
    Appeal from the Iowa District Court for Woodbury County, John D.
    Ackerman, Judge.
    The defendant appeals his sentence of incarceration, arguing the
    district court erred in declining to order probation. AFFIRMED.
    Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
    General, Patrick Jennings, County Attorney, and Kristine Timmins,
    Assistant County Attorney, for appellee.
    2
    MANSFIELD, Justice.
    This case presents the question whether immigration status may be
    considered during sentencing. The defendant in this case is a Mexican
    national who pled guilty to and was convicted of a class “C” felony drug
    offense. He was placed on an immigration hold for likely deportation. At
    sentencing, the defendant sought probation, while the State requested
    incarceration. The district court imposed a prison sentence, expressing
    the view that it would not be feasible to order probation for someone who
    was going to be deported to Mexico. The defendant appeals.
    On appeal, we conclude, like the majority of other jurisdictions, that
    immigration status per se is not an appropriate sentencing consideration,
    but that immigration status may be taken into account to the extent it
    affects an otherwise relevant sentencing factor. We also conclude that on
    this record, the district court properly determined that probation would
    not be appropriate for someone whose probation would have to be
    supervised in Mexico. We therefore affirm the defendant’s conviction and
    sentence.
    I. Facts and Procedural History.
    Guillermo Avalos Valdez was born in Mexico in 1981. In 1997, he
    entered the United States without legal permission. He settled in Merced,
    California.
    On December 24, 2017, Avalos Valdez was stopped on Interstate 29
    in Woodbury County for driving eighty-four miles per hour in a seventy
    miles-per-hour zone. As two Woodbury County deputies approached the
    vehicle, they could smell marijuana coming from it. They removed Avalos
    Valdez and a female passenger from the vehicle. A subsequent search
    uncovered two hockey-sized duffle bags and two boxes with Christmas-
    themed wrapping paper containing a total of 184 pounds of marijuana,
    3
    mostly divided into individually heat-sealed one-pound bags. A .45 caliber
    pistol with a loaded magazine and Grim Reaper handgrips was found
    under the front passenger seat. Avalos Valdez had a tattoo showing a Grim
    Reaper with a marijuana leaf, and the female passenger also had a Grim
    Reaper tattoo. The vehicle was registered to an “Iran Guillermo Avalos
    Valdez.”
    Avalos Valdez was charged with possession with intent to deliver a
    controlled substance, more than fifty but not more than 100 kilograms of
    marijuana, a class “C” felony. See Iowa Code § 124.401(1)(c)(5) (2017). He
    was also charged with a drug stamp tax violation, a class “D” felony. See
    
    id. § 453B.12(2).
    Avalos Valdez waived speedy trial.
    On May 18, 2018, Avalos Valdez entered into a written agreement
    with the State to plead guilty to the possession with intent to deliver count,
    with the drug stamp tax violation being dismissed and the parties being
    free to argue sentence.
    A presentence investigation (PSI) report had been prepared. The
    report noted a prior California conviction in 2008 for vandalism.
    Avalos Valdez indicated that he had done general labor (although he had
    some    back   issues)    and   made   approximately     $12,000      in   2017.
    Avalos Valdez told the interviewer that he was a regular marijuana user
    for his back issues and described “being on an adventure” when he was
    arrested. At the time of sentencing, Avalos Valdez was on a United States
    Immigration    and   Customs     Enforcement     (ICE)   hold   for    potential
    deportation. The PSI report stated that on the Iowa Risk Revised (IRR) risk
    assessment tool, Avalos Valdez “scored in the low category for future
    violence and the low category for future victimization.” According to the
    PSI report, “The IRR would further indicate the Defendant would be
    supervised initially at the low normal level of supervision should he be
    4
    supervised in the community.” However, the report also noted the quantity
    of marijuana involved and recommended that Avalos Valdez receive a term
    of incarceration.
    On May 22, the district court held a hearing for the purpose of plea
    taking and sentencing. During the guilty plea colloquy, defense counsel
    addressed the immigration consequences of Avalos Valdez’s plea and
    explained, “[B]ecause this is an aggravated felony and a controlled
    substances offense, there would be deportation, mandatory detention, if
    he   does   have    any   removal   proceedings.”    The   court   accepted
    Avalos Valdez’s guilty plea and, with the consent of the parties, proceeded
    to sentencing. The State asked for imprisonment:
    Your Honor, the State would be requesting that the
    defendant be sentenced to an indeterminate term of
    incarceration of ten years, that the minimum fine of $1,000
    plus the 35 percent surcharge be imposed and that that be
    suspended, and the other mandatory minimum requirements.
    The State believes that that penalty is appropriate due
    to the fact that the defendant did have 180 pounds of
    marijuana in his possession at that time, which is a
    significant amount. The defendant also has no significant ties
    to the area as well as the immigration hold which will make it
    difficult for him to complete probation. The State believes that
    the presentence investigation recommendation of the prison
    sentence is the appropriate one in this case, and that’s what
    we would request.
    Defense counsel responded by asking for probation:
    My client is asking that the Court grant him probation
    on this offense. The presentence report indicates that the
    Iowa risk revised assessment that was used indicates he has
    a -- he has a low category for future violence, a low category
    for future victimization, and that the IRR would indicate he
    could be supervised initially on a low/normal level in the
    community.
    I realize he has an immigration hold, but he, essentially,
    only has one prior conviction for vandalism back in 2008; so
    he really doesn’t have a criminal history to speak of at all.
    5
    With probation, I realize he’s going to be taken into
    custody by immigration. He has the hold. It’s likely he will
    be deported. I know there are times, at least in federal court,
    where we have made a term of probation “You shall not
    illegally re-enter the United States” so that if he ever comes
    back to the United States he will be in violation of his
    probation and he would be brought back to court.
    He’s requesting that he be given that opportunity to deal
    with his immigration and let them make that determination.
    Otherwise, other than the quantity involved here, if he was
    here as a United States citizen, I think that probation would
    be something that would definitely be a possibility. So we are
    asking that he be treated the same as someone else would and
    let immigration handle the immigration consequences that he
    is aware of.
    The court imposed a prison sentence as requested by the State. It
    stated,
    I want to address some of your comments. The
    statement that you think this Court would give a U.S. citizen
    with the same record a suspended sentence is not accurate.
    180 pounds of marijuana is one big deal, and it’s -- he’s a
    danger to the community. And he’s also a flight risk. I don’t
    think probation would be appropriate with pleading to this
    charge given his immigration status. He won’t be available if
    I were to award probation, as I understand it. So I don’t think
    probation is an appropriate sentence here.
    Therefore, the Court finds that the sentence imposed
    will provide for the maximum opportunity for the defendant’s
    rehabilitation, to protect the community from further offenses
    by this defendant and others. I’ve considered the nature of
    the offense committed and the contents of the presentence
    investigation report and the plea agreement.
    Avalos Valdez filed a notice of appeal on May 31. We retained the
    appeal.
    II. Standard of Review.
    We review sentences for abuse of discretion.      State v. Roby, 
    897 N.W.2d 127
    , 137–38 (Iowa 2017). However, our review is not forgiving of
    a denial of a constitutional right. 
    Id. To put
    it another way, if we disagree
    with the trial court’s fact-finding after applying a de novo standard of
    6
    review, we will rely on the facts as we find them to determine whether the
    Iowa Constitution has been violated. 
    Id. at 138.
    III. Mootness.
    We must first deal with a threshold question of mootness.           On
    September 17, 2019, the State moved to dismiss Avalos Valdez’s appeal as
    moot. Avalos Valdez was paroled on May 16 of this year, having served
    approximately seventeen months of his ten-year sentence.            He was
    released to ICE and then taken into the custody of the United States
    Marshal pending federal prosecution in San Diego, California. The State
    maintains that these events render Avalos Valdez’s appeal moot:
    [E]ven if he prevails on appeal and even if he is resentenced to
    a suspended sentence, he will face the same result—
    mandatory immigration detention and impending deportation
    following his federal criminal charge. This Court cannot grant
    any relief that will undo the prison time that the defendant
    has already served. Therefore, a remand for resentencing will
    have no appreciable effect on the defendant’s status.
    Avalos Valdez resists the State’s motion. He contends the appeal is not
    moot, and even if it is, an exception to the mootness doctrine applies.
    “The key in assessing whether an appeal is moot is determining
    whether the opinion would be of force or effect in the underlying
    controversy.” Puntenney v. Iowa Utils. Bd., 
    928 N.W.2d 829
    , 840 (Iowa
    2019) (quoting Perkins v. Bd. of Supervisors, 
    636 N.W.2d 58
    , 64 (Iowa
    2001)), petition for cert. pending, No. 19–447 (U.S. Sept. 30, 2019).
    Avalos Valdez concedes that prevailing on this appeal would not get him
    released from federal custody. However, he points out there would be a
    difference going forward if he were deemed on state-ordered probation
    rather than state-ordered parole. Avalos Valdez contrasts his case with
    others where the defendant had completely served his sentence. See, e.g.,
    State v. Wilson, 
    234 N.W.2d 140
    , 141 (Iowa 1975). We also note that if
    7
    Avalos Valdez is convicted on the pending federal charge, his federal
    sentence could be affected by whether he received a suspended sentence
    or (as actually happened) a ten-year sentence on his state drug trafficking
    charge. See U.S. Sentencing Guidelines Manual § 4A1.1, at 379–82 (U.S.
    Sentencing Comm’n 2018) (adding 3 points to the criminal history
    guideline calculation for each prior sentence of imprisonment exceeding
    one year and one month but only 1 point for a totally suspended sentence).
    In any event, we agree with Avalos Valdez that the public-
    importance exception applies here and warrants our exercise of
    jurisdiction.     We discussed the public-importance exception at some
    length in Homan v. Branstad, 
    864 N.W.2d 321
    , 330–31 (Iowa 2015). There
    we said,
    We consider four factors in determining whether we should
    exercise our discretion to decide a moot action under this
    exception:
    (1) the private or public nature of the issue;
    (2) the    desirability   of   an     authoritative
    adjudication to guide public officials in their
    future conduct; (3) the likelihood of the
    recurrence of the issue; and (4) the likelihood the
    issue will recur yet evade appellate review.
    
    Id. at 330
    (quoting Maghee v. State, 
    773 N.W.2d 228
    , 234 (Iowa 2009)).
    Weighing those factors here, we find the issue both important and
    likely to recur. Approximately 50,000 unauthorized immigrants reside in
    Iowa, comprising 1.7% of the state’s population.            U.S. Unauthorized
    Immigrant Population Estimates by State, 2016, Pew Research Center
    (Feb. 5,   2019),      www.pewhispanic.org/interactives/u-s-unauthorized-
    immigrants-by-state/ (follow “DATA” hyperlink).             We have already
    recognized the importance of giving accurate advice to defendants on the
    immigration consequences of guilty pleas. See generally Diaz v. State, 
    896 N.W.2d 723
    , 725 (Iowa 2017). Judges, prosecutors, defense counsel, and
    8
    defendants also need to know whether immigration status can be
    considered in sentencing.
    Additionally, this issue has the potential to evade appellate review.
    Whether to order probation for an offender who is subject to deportation
    is more likely to arise when the offender, like Avalos Valdez, otherwise
    faces indeterminate prison sentencing totaling ten years or less. In those
    circumstances, as with Avalos Valdez, it is quite possible that the
    defendant—even if sentenced to prison—will be paroled to an ICE detainer
    before any sentencing appeal can be decided. Accordingly, we deny the
    motion to dismiss and will proceed to the merits of this case.
    IV. Merits.
    Avalos Valdez raises a single issue on appeal—whether his sentence
    violates the Due Process and Equal Protection Clauses of the Iowa and
    United States Constitutions because it was based on his immigration
    status. See U.S. Const. amend. XIV; Iowa Const. art. I, §§ 6, 9. Our court
    has not previously addressed the extent to which a sentencing court may
    take into account a defendant’s immigration status.
    Avalos Valdez and the State cite and discuss the same out-of-state
    cases in their briefs, so it behooves us to examine them closely.
    In State v. Zavala-Ramos, the trial court sentenced a drug offender
    who had previously been deported and who was on an immigration hold
    to prison, even though the sentencing guidelines called for a presumptive
    probationary sentence. 
    840 P.2d 1314
    , 1315 (Or. Ct. App. 1992). The
    defendant appealed the sentence, arguing it was improper for the
    sentencing court to rely on “his immigration status and immigration law
    violations.”   
    Id. The Oregon
    Court of Appeals took a middle path,
    reasoning,
    9
    Immigration status per se is not relevant. However,
    circumstances that demonstrate a defendant’s unwillingness
    to conform his conduct to legal requirements, whether or not
    there are criminal consequences, may be. Defendant had
    been illegally in the United States at least twice. The court
    could consider that pattern of conduct in determining whether
    it is likely that a probationary sentence would serve the
    purposes of the guidelines to protect the public and punish
    the offender.
    
    Id. at 1316
    (footnote omitted) (citation omitted). The court nonetheless
    reversed and remanded for resentencing because the court had not
    provided a sufficient explanation of “why the circumstances are so
    exceptional that imposition of the presumptive sentence would not
    accomplish the purposes of the guidelines.” 
    Id. at 1317
    (quoting State v.
    Wilson, 
    826 P.2d 1010
    , 1012 (Or. Ct. App. 1992)).
    In People v. Cisneros, the California Court of Appeal took a similar
    middle path. 
    100 Cal. Rptr. 2d 784
    , 785 (Ct. App. 2000). It stated,
    We conclude that the trial court erred in ruling that
    illegal aliens are categorically excluded from participation in
    the deferred judgment program for first-time drug offenders.
    Trial courts are free to consider illegal alien status as a factor
    in determining whether a defendant is a good candidate for
    the deferred judgment program, but illegal alien status is not
    an automatic disqualification.
    
    Id. The court
    went on,
    An illegal alien may be a poor candidate for probation given
    typically limited ties to the community and the prospect of
    deportation. The same considerations may weigh against
    admitting an illegal alien to the deferred entry of judgment
    program. However, a defendant’s misdemeanor violations of
    the immigration laws in entering the United States without
    inspection and failing to register do not necessarily constitute
    “criminal conduct rendering him or her unsuitable for
    deferred entry of judgment . . . ” in every instance.
    
    Id. at 788
    (citation omitted) (quoting Cal. Penal Code § 1000.3).
    10
    The District of Columbia Court of Appeals followed the same center
    course in Yemson v. United States, 
    764 A.2d 816
    , 819–20 (D.C. 2001).
    There the court concluded,
    Because even an illegal alien has a right to due process,
    a court imposing sentence in a criminal case may not treat the
    defendant more harshly than any other defendant “solely
    because of [his] nationality or alien status. That obviously
    would be unconstitutional.” This does not mean, however,
    that a sentencing court, in deciding what sentence to impose,
    must close its eyes to the defendant’s status as an illegal alien
    and his history of violating the law, including any law related
    to immigration. Indeed, “[t]he sentencing court . . . must be
    permitted to consider any and all information that reasonably
    might bear on the proper sentence for the particular
    defendant, given the crime committed.”
    
    Id. at 819
    (alterations in originals) (first quoting United States v. Gomez,
    
    797 F.2d 417
    , 419 (7th Cir. 1986); then quoting Wasman v. United States,
    
    468 U.S. 559
    , 563, 
    104 S. Ct. 3217
    , 3220 (1984)).
    Likewise the Nevada Supreme Court.          In Ruvalcaba v. State, it
    confronted the following situation:
    We note that the sentencing judge below did not sentence
    Ruvalcaba more harshly based upon ethnicity or nationality,
    or because Ruvalcaba committed the crime in a country
    foreign to him. Nor did the sentencing judge predicate his
    decision on any animus towards illegal aliens. Rather, the
    sentencing judge denied Ruvalcaba’s request for probation
    because, as an illegal alien, Ruvalcaba would likely be
    deported if he received probation and would thus ultimately
    avoid punishment.
    
    143 P.3d 468
    , 470 (Nev. 2006). Drawing a distinction between a sentence
    based on “citizenship” and one based on “the ability to enforce the criminal
    laws of [the] state,” the court affirmed the defendant’s sentence. 
    Id. at 471.
    The court observed that “a defendant’s ability to comply with the terms of
    probation is certainly a legitimate factor for a sentencing judge to consider
    in determining whether to grant probation.” 
    Id. 11 In
    People v. Hernandez-Clavel, the Colorado Court of Appeals framed
    the issue as “whether the circumstances relating to defendant’s status as
    an illegal alien subject to deportation were proper considerations in the
    sentencing court’s decision to grant or deny probation.” 
    186 P.3d 96
    , 97
    (Colo. App. 2008). The court answered yes. 
    Id. at 100.
    It recognized as
    legitimate the trial court’s concern that the defendant’s likely deportation
    meant that he could not benefit from probation or be available to
    participate in probation. 
    Id. The court
    affirmed the trial court’s denial of
    probation, rejecting also the defendant’s contention that his sentence
    violated equal protection principles. 
    Id. In Trujillo
    v. State, the Georgia Court of Appeals upheld a trial court’s
    decision to deny probation to an unauthorized alien, noting that “the trial
    court would have been remiss had it ignored the practical realities
    presented by Trujillo’s immigration status and the obstacles that it would
    have presented to Trujillo’s ability to comply with the imposed conditions
    of probation.”   
    698 S.E.2d 350
    , 355 (Ga. Ct. App. 2010).           The court
    specifically rejected the defendant’s argument that the sentence violated
    his constitutional rights to due process and equal protection under the
    law. 
    Id. at 353–54.
          In People v. Cesar, on the other hand, the New York Appellate
    Division vacated a sentence because the trial court had denied probation
    “solely on the basis of the defendant’s status as an undocumented
    immigrant.” 
    14 N.Y.S.3d 100
    , 107 (App. Div. 2015). The court reasoned
    that this would be a violation of due process and equal protection. 
    Id. at 106.
    Yet the court acknowledged,
    [C]ourts may appropriately consider a defendant’s
    undocumented immigration status in imposing criminal
    sentences. The decision to impose or not impose a sentence
    of probation may legitimately be affected by factors directly
    12
    related to undocumented status. Those factors include, but
    are not necessarily limited to, the likelihood of the defendant’s
    deportation during the probationary period, the defendant’s
    history, if any, of repeated departures from and illegal
    reentries into the United States, the presence or absence of
    family in the United States, the defendant’s employment
    history, and the defendant’s legal employability.
    
    Id. Most recently,
    in State v. Cerritos-Valdez, the Nebraska Supreme
    Court wrote a thorough opinion that dissected many of these prior cases.
    
    889 N.W.2d 605
    , 611–13 (Neb. 2017). In that case, the defendant pled
    guilty to possession of a controlled substance and driving under the
    influence. 
    Id. at 608.
    The district court denied the defendant’s request
    for probation, commenting, “[I]t’s very difficult, if not impossible, for the
    Court to impose probation when the first term of probation is that you
    obey all laws; and to obey all laws, you would have to leave this country,
    which would then conversely make it impossible for you to be supervised
    by probation.” 
    Id. at 609.
    On appeal, the Nebraska Supreme Court affirmed.            
    Id. at 613.
    Following its survey of prior caselaw from other jurisdictions, the court
    concluded,
    Based on the foregoing, we agree that a defendant’s
    status as an undocumented immigrant cannot be the sole
    factor on which a court relies when determining whether to
    grant or deny probation; however, a sentencing court need not
    ignore a defendant’s undocumented status. When deciding
    whether to grant probation, a defendant’s undocumented
    status may properly be considered by a sentencing court as
    one of many factors so long as it is either relevant to the
    offense for which sentence is being imposed, relevant to
    consideration of any of the required sentencing factors under
    Nebraska law, or relevant to the defendant’s ability or
    willingness to comply with recommended probation
    conditions.
    
    Id. at 611–12
    (footnotes omitted). The court then found the defendant’s
    sentence in compliance with these parameters:
    13
    Here, the district court expressed concern that due to
    Cerritos-Valdez’ undocumented status, it would be difficult for
    him to comply with the standard terms of probation.
    Generally speaking, this is an appropriate sentencing
    consideration; it was a concern shared by the probation officer
    who completed the PSI, and it was one which was supported
    by the information contained in the PSI.
    
    Id. at 612–13.
          Sifting through these authorities, they appear to point in a single
    direction. A defendant’s immigration status, qua immigration status, may
    not be the basis for a sentence. However, to the extent immigration status
    affects an otherwise relevant sentencing factor, it may be taken into
    account.
    Avalos Valdez cites one case to the contrary—State v. Mendoza, 
    638 N.W.2d 480
    (Minn. Ct. App. 2002). In that case, the probation officer
    indicated in the PSI that she had been told the defendants, both Mexican
    nationals, would be deported once released. 
    Id. at 482.
    The district court
    declined to order probation for them because their immigration status
    made probation “impossible and impractical.” 
    Id. The court
    reversed the
    sentence. Without citing or discussing any out-of-state authority, it noted
    that deportation is a “collateral” consequence of a guilty plea. 
    Id. at 483.
    It then continued,
    This observation compels our conclusion that possible
    deportation because of immigration status is not a proper
    consideration in criminal sentencing. If the district court were
    to consider deportation as a factor in its sentencing decision,
    it would be considering a possible collateral consequence in
    arriving at an appropriate sentence for the defendant. We
    conclude that consideration of a possible collateral
    consequence, which is beyond the control of the district court
    and which may or may not occur, is not a valid consideration
    in deciding whether to impose a presumptive sentence or to
    depart from the guidelines.
    
    Id. at 484.
                                            14
    The logic of Mendoza is open to criticism.           Since Mendoza was
    decided, both the United States Supreme Court and our court have
    recognized that immigration is not simply an inscrutable maze. There are
    circumstances when deportation is more than just a “possible” result of a
    criminal conviction; it can be a certainty. Padilla v. Kentucky, 
    559 U.S. 356
    , 368–69, 
    130 S. Ct. 1473
    , 1483 (2010); 
    Diaz, 896 N.W.2d at 731
    –32.
    To say that probation should be granted because deportation “may or may
    not occur” is probably finessing the issue too much.               And to treat
    immigration as simply a “collateral” consequence may no longer be
    realistic. See 
    Padilla, 559 U.S. at 365
    –66, 130 S. Ct. at 1481–82; 
    Diaz, 896 N.W.2d at 732
    . When the Massachusetts Supreme Judicial Court
    reversed its prior position on consideration of immigration consequences
    during sentencing, it pointed out that:
    Reasoning that immigration consequences are collateral
    to conviction, this court has held that a trial judge should not
    consider the potential immigration consequences in
    fashioning a sentence. This reasoning was undermined in
    Padilla when the Supreme Court declined to accept the view
    that immigration consequences are collateral to conviction.
    Therefore, our precedent that a trial judge cannot factor
    immigration consequences into sentencing is no longer good
    law.
    Commonwealth v. Marinho, 
    981 N.E.2d 648
    , 660 n.19 (Mass. 2013)
    (citations omitted). 1
    In any event, we are persuaded that the principle announced in the
    cases other than Mendoza is the correct one. Immigration status per se is
    not a relevant sentencing factor, but immigration status may impact an
    otherwise relevant sentencing factor and, to that extent, may be
    1Furthermore, as Avalos Valdez admits, the Minnesota Supreme Court has not
    adopted Mendoza but has instead expressly left open the extent to which possible
    deportation because of immigration status may be considered in sentencing. State v.
    Kebaso, 
    713 N.W.2d 317
    , 324 n.7 (Minn. 2006) (en banc).
    15
    considered.   Such a procedure does not violate due process or equal
    protection. To the contrary, it complies with Iowa law, which requires the
    court to take into account all pertinent information in order to select the
    sentencing    option   that   provides    “maximum   opportunity    for   the
    rehabilitation of the defendant, and for the protection of the community.”
    Iowa Code § 901.5; see also 
    id. § 907.5(1).
    Several other points should be noted. Courts have at times relied
    on the effects of a defendant’s immigration status in imposing a more
    lenient sentence.   For example, in State v. Silvera, a sentencing panel
    imposed a sentence below the presumptive range so the defendant—a
    lawful permanent resident who had served in the United States Armed
    Forces and received an honorable discharge—would not be deported. 
    309 P.3d 1277
    , 1280–81 (Alaska Ct. App. 2013). The State challenged that
    sentence (and another in a companion case) as violating equal protection.
    The Alaska Court of Appeals disagreed, “[I]t was the harsh collateral
    consequences they faced if they were deported, not their status as non-
    citizens, that led the three-judge panel to conclude that sentencing the
    defendants within the presumptive range would be manifestly unjust in
    these cases.” 
    Id. at 1287.
    The practice approved in Silvera could not occur
    if the effects of immigration status could never be considered. Cf. State v.
    Sanchez, 
    346 P.3d 701
    , 704 (Utah Ct. App. 2015) (holding that the trial
    court was not required to consider the defendant’s potential deportation
    and impose less than the standard sentence).
    Also, if the ramifications of immigration status could not be
    considered in criminal sentencing, it would logically follow they would be
    off-limits in other types of proceedings, such as bail setting, child custody
    and termination of parental rights. We disagree with this result. See In re
    Adoption of C.M., 
    414 S.W.3d 622
    , 669 (Mo. Ct. App. 2013) (explaining that
    16
    the mother’s “immigration status properly played a part” in a termination-
    of-parental-rights proceeding); Rico v. Rodriguez, 
    120 P.3d 812
    , 818 (Nev.
    2005) (“Although we recognize that Rico is entitled to due process and
    equal protection, she has simply not demonstrated that the district court’s
    consideration of her immigration status violated her constitutional rights
    or was a primary factor in the determination of her children’s best
    interests.”); State v. Fajardo-Santos, 
    973 A.2d 933
    , 939 (N.J. 2009) (“When
    bail is set, it is entirely appropriate to consider a defendant’s immigration
    status in evaluating the risk of flight or non-appearance.”); In re
    Dependency of J.B.S., 
    863 P.2d 1344
    , 1350 (Wash. 1993) (en banc)
    (“Although not dispositive, the trial court has discretion to consider
    [immigration status], insofar as it may affect the consequences of the
    placement decision.”).
    Immigration status is not a characteristic that can never be relevant
    to government action. For example, in Sanchez v. State, we held it did not
    violate the Equal Protection and Due Process Clauses of the Iowa and
    United States Constitutions for our state to deny driver’s licenses to
    unauthorized aliens. 
    692 N.W.2d 812
    , 819–20 (Iowa 2005).
    In order to carry out some legitimate public policies, such as
    optimizing the rehabilitation of a criminal offender, it may be necessary to
    consider matters such as the offender’s living and job prospects, which
    may require consideration of that offender’s immigration status. Ignoring
    those factors simply because they are attributable to immigration status
    could result in disparate treatment of a defendant because he or she is an
    unauthorized alien.
    We now apply these principles to the present case. For that, we
    return to the court’s statement of reasons for the sentence it imposed.
    Initially, the district court commented on the nature of the crime (involving
    17
    184 pounds of marijuana) and drew the plausible conclusions that
    Avalos Valdez could be considered a “danger to the community” and a
    “flight risk.”   The court then stated, “I don’t think probation would be
    appropriate with pleading to this charge given his immigration status.”
    But the court immediately explained further, “He won’t be available if I
    were to award probation, as I understand it. So I don’t think probation is
    an appropriate sentence here.”
    Reading the court’s statement in its entirety, we think the court
    decided against probation for Avalos Valdez not because he was an
    unauthorized alien but because his immigration status meant he “[would
    not] be available” to undergo probation, as the court “underst[ood] it,” and
    because of the quantity of marijuana involved.        We do not see any
    constitutional defect in that ruling.        The record indicated that
    Avalos Valdez would be taken into ICE custody and then deported as soon
    as he was no longer incarcerated. It is difficult to see how probation could
    have been implemented effectively for Avalos Valdez upon his deportation.
    Probation requires that the person be “committed to the custody, care, and
    supervision” of “the judicial district department of correctional services.”
    Iowa Code § 907.8(2).        How would that supervision occur once
    Avalos Valdez had been removed to Mexico?            And how would the
    conditions of probation be enforced? Ordinarily, violations of probation
    are enforced as provided in chapter 908. See 
    id. § 907.3(2)(b).
    This starts
    with an arrest and an initial appearance before a magistrate.       See 
    id. §§ 908.1,
    .2, .11.    Notably, there is an “Interstate Compact for Adult
    Offender Supervision” in the Iowa Code, but no international compact. See
    
    id. § 907B.1.
    We do not foreclose the possibility that in some future case a record
    could be developed showing that probation would be workable and proper
    18
    for a foreign national being deported to his or her home country.
    Avalos Valdez did not explain below, and does not explain in his briefing
    here, how such a probation could be implemented for him. Instead, his
    argument is largely abstract and academic. Accordingly, on this record we
    find no error.
    V. Conclusion.
    For the foregoing reasons, we affirm Avalos Valdez’s conviction and
    sentence.
    AFFIRMED.