What are the legal penalties and typical sentences under 8 U.S.C. §1325 and §1326?
Executive summary
Illegal entry under 8 U.S.C. §1325 is a misdemeanor punishable by up to six months in jail (and fines) for a first offense, while illegal reentry under 8 U.S.C. §1326 is a felony with statutory maximums that range from two years for a simple reentry to as much as 10 or 20 years where qualifying prior convictions exist (and specific aggravated circumstances apply) [1] [2] [3]. How long people actually serve is shaped not only by those statutory caps but by federal sentencing guidelines, enhancements for prior convictions, charging choices, and prosecutorial discretion—factors that produce wide variation in typical sentences [4] [5] [6].
1. What §1325 actually criminalizes and its statutory penalty
Section 1325 criminalizes improper entry by an alien—entering at an undesignated time or place, avoiding inspection, or making false statements to gain entry—and a first offense is a misdemeanor carrying a fine, up to six months’ imprisonment, or both, with higher penalties for repeat offenses or when charged as a felony in certain circumstances [1] [7] [8]. Multiple independent organizations and summaries repeat that the baseline criminal exposure under §1325 is short-term imprisonment and civil penalties may also attach under the statute [1] [7].
2. What §1326 criminalizes and its statutory penalty tiers
Section 1326 makes it a crime to unlawfully reenter, attempt to reenter, or be found in the United States after a prior removal, and its statutory penalties are tiered: a basic §1326 offense carries a maximum of two years, but statutory increases permit up to 10 years where the prior removal followed a felony conviction (or multiple qualifying misdemeanors) and up to 20 years where the prior removal followed an aggravated felony conviction [1] [2] [3]. The text of the statute also includes specific provisions that can require longer terms in narrow scenarios—examples and historical amendments appear in the statutory notes compiled by LII [2].
3. How federal sentencing guidelines and enhancements shape outcomes
Sentences imposed in practice draw heavily on the United States Sentencing Guidelines, chiefly §2L1.1 and related commentary, which establish base offense levels for illegal-entry/reentry offenses and apply enhancements for prior illegal-reentry convictions, for prior criminal history, and for aggravated facts tied to the prior removal or criminal record [5] [4] [6]. The Commission’s materials and training primers explain that while statutory maximums cap exposure, guideline calculations (and prosecutorial charging choices invoking §1326(b) enhancements) often determine whether a defendant faces a short term, several years, or the higher statutory maxima [4] [9] [5].
4. Typical sentences in the federal courts—what the data and practice show
Although statutory maxima may reach decades in aggravated cases, most ordinary §1326 prosecutions historically result in sentences measured in months to a few years depending on prior convictions and guideline adjustments; summaries from the Department of Justice, advocacy groups, and the Sentencing Commission show that prior criminal history—especially an “aggravated felony” finding—dramatically increases the exposure from a typical two‑year cap to the 10- or 20‑year tiers that prosecutors can and do pursue [1] [3] [5]. National advocacy reports and fact sheets also document that §§1325 and 1326 have been among the most frequently prosecuted federal offenses in recent years and that defendants from Latin America are disproportionately represented among those convicted [1] [10].
5. Political context, critiques, and competing narratives
Critics argue these statutes have roots in racist policy choices and that their aggressive use—especially under recent administrations—widens mass incarceration, separates families, and is not empirically justified as a deterrent; organizations such as the National Immigration Project and immigrant-rights groups use historical and statistical arguments to call for ending criminal prosecutions under §§1325 and 1326 [11] [10]. The government and many prosecutors, in contrast, defend criminal prosecution as a tool for immigration enforcement and public-safety sequencing; reporting and DOJ materials stress that charging discretion and guideline frameworks are intended to calibrate punishment to prior conduct and public-safety concerns [1] [3].
6. Limits of the available reporting and what remains uncertain
Public sources neatly set out statutory maximums, guideline structures, and broad trends in charging, but they do not produce a single “typical” sentence applicable everywhere because outcomes depend on charging decisions, plea bargains, individual criminal histories, guideline calculations, and local U.S. Attorney priorities—dimensions that vary by district and over time; these sources document the levers but cannot precisely predict sentence length for any individual case [4] [5] [9].