Judges CANNOT Consider National Origin in Sentencing Defendant: North Florida’s Highest Court

December 4, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

Florida’s 1st District Court of appeal reversed a defendant’s sentence to the statutory maximum because the trial judge appeared to take into consideration the fact that the defendant was not American.

In Florida, traveling to meet a minor (Fla. Stat. 847.0135(4)) and solicitation of a minor online (Fla. Stat. 847.0135(3)) are very serious offenses. Someone may be charged with either (or both) of these offenses after being ensnared in a law enforcement sting operation, during which police impersonate minors online and communicate with users of various platforms.

For someone to be proven guilty of solicitation, the State must establish beyond a reasonable doubt:

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor to engage in sexual activity (or attempted to do so)

For someone to be guilty of traveling to meet a minor, the State must prove the following beyond a reasonable doubt:

• The defendant committed a solicitation of a minor or person believed to be a minor online (e.g. the State must prove a violation of Fla. Stat. 847.0135(3))
• After that solicitation, the defendant then traveled or attempted to travel within Florida to meet the minor (or person believed to be a minor) to engage in unlawful sexual activity

Both of these crimes carry very serious potential penalties. Traveling to meet a minor in Florida for sexual activity is a second-degree felony (up to 15 years in prison and a $10,000 fine). Online solicitation of a minor is a third-degree felony (up to 5 years in prison and a $5,000 fine).

Under certain circumstances, when traveling and solicitation charges are brought together, the solicitation charge may be dismissed before trial on double jeopardy grounds. State v. Shelley, 176 So.3d 914 (Fla. 2015)

This is because a solicitation must take place that results in traveling for someone to be found guilty of traveling. If the State does not allege a separate solicitation that did not directly lead the defendant to travel, charging both offenses is a double jeopardy violation – since the elements of solicitation are entirely subsumed by the elements of traveling.

For more on double jeopardy in traveling and solicitation cases, click here. To learn more about what constitutes solicitation of a minor under Florida law, click here.

In certain cases, someone may be convicted of both traveling to meet a minor and solicitation of a minor after engaging in sexual communications with a child (or person believed to be one, such as an undercover officer) online – and traveling to meet them for sex. If they are, the maximum sentence is 20 years in prison: 15 for traveling, 5 for solicitation.

In Florida, a judge has the discretion to determine whether these sentences will run concurrently (together, meaning the defendant actually only serves 15 years), or consecutively (separately, meaning the defendant serves the 15 years for traveling followed by the 5 for solicitation). 

Only if a judge sentences a defendant to the maximum on both counts – and chooses to make the sentences run consecutively – will the defendant serve all 20 years. This is relatively uncommon.

But in one case, that is exactly what happened. In 2010, a trial judge in Duval County sentenced Irfan Nawaz (a Pakistani immigrant) to 20 years in prison after he was convicted of traveling to meet a minor and solicitation of a minor.

However, Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) reversed Nawaz’s sentence on intriguing legal grounds. Let’s take a look at Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010) and what it means for non-citizen and immigrant defendants in criminal trials.

KEY CASE: Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010)

In Nawaz, the defendant (Nawaz) was found guilty of traveling to meet a minor and soliciting a minor online. He received a sentence of 20 years in prison, but appealed its legality. 

Nawaz argued to the 1st DCA that the trial judge considered his status as a foreign national (the fact that he was Pakistani) in imposing a harsher sentence – violating his due process rights under the Florida and U.S. Constitution. According to the 1st DCA:

“During the sentencing hearing, the prosecution played portions of a taped interview of appellant after his arrest in which he expressed his views regarding the morality of American women. Specifically, he stated that during conversations with underage women, he laughed at how stupid American women are and expressed his beliefs regarding the immorality of Americans. During the interview, appellant also remarked how glad he was to have married a woman from his home country of Pakistan: ‘[I] thank God that I did not marry anyone from this country who are that sexually hungry and who want that many stupid things to be done to them by a stupid stranger.’”

After hearing the tape, the trial judge derided Nawaz as a “degenerate, a hypocrite, and a bigot.” The trial judge then told Nawaz: “On behalf of my countrywomen I join you in thanking God that you did not marry an American woman.” After commenting that Nawaz deserved a “living hell” for his actions, the judge sentenced him to 20 years in prison.

On appeal, Florida’s 1st DCA found that the trial judge appeared to improperly consider the fact that Nawaz was an immigrant in imposing an especially harsh sentence. The 1st DCA began by noting its standard of review:

“Appellant raises, for the first time, on appeal that the trial court improperly considered his national origin in imposing his guidelines sentence of twenty years. Because he did not preserve the issue by raising a contemporaneous objection in the trial court, this court may consider the error only if it is fundamental.”

Essentially, Nawaz could only prevail on appeal (have his sentence tossed out) if he was able to prove that his due process rights were violated by the trial judge during sentencing. The 1st DCA wrote:

“Here, appellant asserts that the trial court considered a constitutionally impermissible factor, namely appellant’s national origin, during the sentencing process. As far as we have been able to determine, this case presents an issue of first impression in Florida. Several federal courts have held that national origin is a constitutionally impermissible factor to consider as a basis for sentencing. … 

“We find the rationale followed by the federal courts to be persuasive with regard to the challenge raised by appellant. We agree with appellant that the comments by the trial judge could reasonably be construed to suggest that the trial judge based appellant’s sentence, at least in part, on his national origin.”

Because the 1st DCA found Nawaz’s claim that he was discriminated against on the basis of his national origin “reasonable,” his 20-year sentence had to be reversed on the basis of fundamental error (e.g. the judge’s apparent bias contaminated the legal validity of the sentence). The 1st DCA concluded:

“We are further mindful of the mandate that, for justice to be done, it must also appear to be done. See, e.g., Scott v. Anderson, 405 So.2d 228, 234 (Fla. 1st DCA 1981) (‘[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’) … Because it is unclear whether the trial court would have imposed the same sentence absent consideration of appellant’s national origin, we must vacate appellant’s sentence and remand for resentencing before a different judge.”

Put simply, the 1st DCA held that even if the trial judge’s comments created the appearance of impropriety, it was still necessary for Nawaz to be resentenced in front of a different judge to eliminate doubts about the integrity of the proceedings.

In sum, Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010) is a fascinating development in Florida case law on the niche issue of potential discrimination by trial judges in sentencing a defendant on the basis of national origin.

Key takeaways from the 1st DCA’s opinion include:

• Nawaz, a Pakistani national who discussed his immigration status in his post-arrest interview, received the maximum sentence for traveling to meet a minor and solicitation of a minor (to run consecutively)
• The trial judge’s comments at the sentencing hearing indicated that Nawaz’s national origin may have been a factor in increasing the sentence’s severity
• Although it was not clear if the judge actually handed down a harsher sentence because of Nawaz’s nationality, the fact that this appeared to be the case was enough to warrant resentencing in front of a new judge

For Florida defense attorneys criminal defendants of foreign origin, Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010) is a little-known but important case.

If someone is arrested and formally charged in Florida with traveling to meet a minor and seeks to raise an entrapment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share