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Drug case may lead to deportation

Posted: January 15, 2012 - 1:14am

A Juneau resident could be deported back to his native Dominican Republic after he pleaded guilty to a felony drug charge late last year.

At a sentencing hearing in Juneau Superior Court on Friday, Judge Philip Pallenberg transferred the case to a three-judge sentencing panel comprised of Superior Court judges appointed by the chief justice of the Alaska Supreme Court, at the request of the defense. The panel will determine whether Jose Perez, now 37, a lawful resident of the United States for nearly 30 years, will receive a sentence that could potentially result in deportation.

Perez pleaded guilty in October to a reduced charge of fourth-degree misconduct involving a controlled substance after a hung jury was declared in August. Prosecutors alleged he sold heroin out of his residence in the Switzer Village trailer park, and he originally faced the more serious charge of possessing heroin with intent to distribute.

As that case was pending in court, Perez got into further legal trouble when he attacked a drug dealer who testified against him as they were both being held at the Lemon Creek Correctional Center. Perez was slapped with fourth-degree assault and interference with official proceedings charges.

The case went to trial in August, and the jury found him guilty on the assault and interference charges, but deadlocked on the drug charge.

Perez’ attorney David Seid said in court Friday if Perez receives a sentence that is more than one year for the interference conviction, it automatically becomes an aggravated felony under federal law, which is a deportable offense.

“After 26 lawful years here, he could be forcibly removed. ... I can’t come here and say, ‘Judge, if you give him more than a year, he’s going to be deported.’ But certainly there’s the potential. That’s what the issue is. Those are the harsh collateral consequences, particularly if he’s found to have committed what’s called in (Title) 8 U.S.C. Section 1227 an aggravated felony.”

That section of the United States Code states any alien, legal or illegal, can be removed from the country if he or she falls into a class of “deportable aliens,” as listed in the law. One such deportable offense is any alien who is convicted of an aggravated felony, or an alien who is convicted of a crime for which a sentence of one year or longer is imposed.

Seid requested Pallenberg sentence Perez to serve 364 days in prison.

“We’re asking for one less day which should keep him here,” Seid said, adding immigration experts he consulted with could not say for sure if Perez would be deported.

“But certainly if this is made an aggravated felony, it subjects him to that risk,” he said.

Seid requested Pallenberg consider two mitigators to lessen Perez’s sentence: a statutory mitigating factor, arguing the interference charge was the least serious in its class, which Pallenberg denied, and a non-statuary mitigating factor in light of the possibility of deportation.

Alaska statutes do not list deportation, or collateral consequences, as a sentencing mitigator. Only the panel of three can find the existence of a non-statutory mitigator, meaning Pallenberg was unable to consider it.

Assistant District Attorney Angie Kemp requested Perez serve three years flat in prison — 2 1/2 for the interference and drug charges and six months for the assault charge. She argued the court should not consider the non-statutory mitigating factor, and that “manifest injustice” would not arise if the court did not consider them. She urged Pallenberg not to refer the case to the three-judge panel.

Pallenberg granted Seid’s request to refer the case, and recommended the panel sentence Perez to serve 364 days on the interference charge and 364 days on the drug charge, as well as impose the entire suspended 437 days sentence from the 2010 case. That totals roughly 2 1/2 years in prison, which fits within the presumptive range of one to three years, he said.

Perez told the judge he immigrated to the United States as a young boy with his family, and that he has lived in this country since. He expressed regret for his actions both inside and outside of the jail.

Perez, who did construction work in Juneau, was arrested in January of 2011 when a drug dealer told Juneau Police Department officers he bought drugs from Perez out of his Switzer Village trailer park. JPD obtained a search warrant for Perez and the trailer, and found a tin that contained individually wrapped packages of heroin.

Pallenberg noted during Friday’s hearing that Perez’s role in the drug operation was unclear, from what he gathered from the trial.

“It’s not 100 percent clear what was going on in that trailer, who was doing what in the drug operation there,” the judge said. “It’s likely that Mr. Perez was a lesser player in the operation. I’m not 100 percent certain of that, but ... there were more responsible for the drug operation than Mr. Perez.”

The state will have a chance to respond to Pallenberg’s referral. A timeline was not provided on when the three-judge panel will hear the matter on whether deportation qualifies as a non-statutory mitigator.

If the panel finds that deportation does not qualify as a mitigator, it can reject the defendant’s argument and sentence the defendant according to the presumptive term, 1-3 years, leaving deportation as a possibility.

Editor's note: The Empire incorrectly reported the year in which Perez was arrested. It has now been corrected. 

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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