In a recent Law360 “Expert Analysis” contribution, Jillian B. Berman, John S. Siffert, and Zachary B. Shemtob consider the hurdles facing client and counsel– and suggest strategies– when a non-US person is sentenced by a US court for a white-collar offense.

Foreign defendants prosecuted for white collar felonies face disparate treatment at sentencing as compared to similarly situated US citizens. Their foreign status prevents such persons from being eligible for placement in a minimum-security prison in many cases, risks detention by ICE after serving their sentence, and makes them unable to earn credits to be applied toward early release under the First Step Act.

 The authors describe ways in which defense counsel have adopted a number of arguments and approaches to address these challenges. This involves, at sentencing, highlighting the need for courts to avoid unwarranted disparities with similarly situated defendants pursuant to Title 18 of the U.S. Code, Section 3553(a)(6). Additionally, there are several opportunities earlier in a federal prosecution for defense counsel to obtain a more favorable outcome for foreign defendants, such as negotiating a disposition for foreign nationals that does not trigger the BOP classification of that person as a “deportable alien,” and advocating for a judicial order preventing them from being held in ICE detention.