Thanks for taking time to read the decision and explain it here. I appreciate it.
It’s quite clear that there is a law that needs fixing, and an illegal that needs to be turned over to the feds.
Actually, it's not at all clear that there's a problem with the law. For example, if Congress changed USC1325 to make it an additional felony to remain here after the initial criminal act of illegally crossing the border, there is no apparent benefit, and most likely it's unhelpful. For example, if you enforce "presence crimes" as a felony, the resultant legal process will swamp prisons and courts; and if you don't enforce it as a felony, there's no procedural difference from what we have today.
What's lost in the shouting on this thread is the fact that this decision deals with whether or not a convicted felon can be denied probation because he's an illegal ... coupled with the fact that the trial judge "departed" from normal sentencing guidelines without following the established process.
Martinez remains convicted of his crimes -- it's the sentencing process that has been sent back down for a re-do.
It's nowhere near being a common question of law, and it's not at all clear to me that USC1325 needs to be changed to account for this particular instance.
As I noted above, I think the proper approach would be for the trial judge to impose an appropriate sentence (however defined) and at the end of it hand the guy over to the feds for deportation.