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Convicted rapist in U.S. illegally gets two years in prison

Jose Maria Agustin's rape conviction didn't stop him from illegally returning to the United States.

This time, he was found working on a dairy farm in Elba, a small town in Genesee County, again without permission to return or work here. He also failed to register as a sex offender.

Agustin, a native and citizen of Mexico, was sentenced Tuesday by U.S. District Judge Lawrence J. Vilardo to two years in prison. He pleaded guilty to illegally re-entering the U.S. and will face a second deportation upon his release from prison.

In sentencing Agustin, Vilardo pointed to his rape conviction and warned him to stay out of the U.S. unless he has permission to come back.

"If you return again, it's not going to be any easier," he told Agustin. "It's going to get harder."

Agustin was convicted of rape and assault with a deadly weapon in California in 2009 and was sentenced to five years in prison. He was eventually deported and was permanently barred from returning because of the rape conviction.

Despite that ban, Agustin was found working in Elba.

In arguing for a longer prison sentence, Special Assistant U.S. Attorney Brian J. Counihan said Agustin would have been looking at substantially more time in prison except for a recent change in federal sentencing guidelines.

Counihan said the revised guidelines now view aggravated felonies, including rape, that occur before a defendant is deported as less onerous than those that occur after he is deported and re-enters the country.

"I submit the opposite is true," he told Vilardo. "He crossed the border as a convicted rapist."

Brian P. Comerford, an assistant federal public defender, acknowledged Agustin's criminal record, but reminded the judge that his client's return was based solely on his need to make money for his three children in Mexico.

Now in his mid-40s, Agustin, speaking through an interpreter, echoed that claim.

"I just want to say I'm sorry a thousand times," he told the judge.

Agustin's sentence is the result of an investigation by the Enforcement and Removal Operations unit of Immigration and Customs Enforcement, and the Genesee County Sheriff’s Office.

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