Cambodian national sought a reduced sentence to avoid deportation.

PORTLAND (AP) – Maine’s highest court Monday denied an appeal by a Cambodian national who sought a reduction in his vehicular manslaughter and drunken driving sentences to avoid deportation.

Touch Rin Svay, an ex-Marine, had been sentenced to six years, with all but 18 months suspended, for causing a May 20, 2001, crash in Raymond that killed his younger sister, Sary. Svay, who was driving nearly 100 mph, also received concurrent 18 months sentences for aggravated assault and aggravated OUI.

Under federal law, an alien convicted of an aggravated felony who receives a prison term of at least one year is subject to deportation. To avert that prospect, Svay asked Justice Thomas Humphrey to impose underlying sentences of less than a year on each charge.

In his appeal, Svay said the judge erred by refusing to consider the likelihood of deportation as a mitigating factor at sentencing.

The Supreme Judicial Court agreed that Humphrey could properly have considered the impact of Svay’s sentence on his immigrant status. But the justices concluded that the judge’s failure to do so was harmless error because “the circumstances of this case would preclude any realistic expectation that the maximum period of imprisonment would be anywhere near the range of 364 days.”

The court noted that 48 vehicular manslaughter cases were presented for sentencing between 1982 and 1999, none of which had an underlying sentence of less than two years.

“Accordingly, any suggestion by the court that it could not consider Svay’s deportation status in mitigation of sentence is of no practical consequence in the circumstances of this case, and does not require us to vacate an otherwise appropriate sentence,” the opinion stated.

Svay was born in 1979 in a refugee camp on the Cambodian-Thai border and came to the United States five years later with his mother and sister. After graduating from Portland High School in 1998, he entered the Marine Corps.

The fatal crash occurred when Svay and his sister attended a party while he was home on leave. Svay, who had been drinking, drove one of four vehicles that left the party and began passing each other at high rates of speed.

His car went out of control, left the road, flipped over several times and struck a telephone pole. Svay and Sary’s boyfriend were injured but survived.

The status of Cambodian nationals convicted of crimes changed that year after the United States and Cambodia signed an agreement that paves the way for the deportation of Cambodians convicted of crimes in the United States.

Svay’s attorney, Peter Cyr, said at the time of sentencing that deporting Svay to Cambodia will amount to him being sent into exile.

Cyr, who represented Svay in his appeal, could not be reached immediately for comment on the supreme court ruling.

AP-ES-07-21-03 1145EDT



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