United States v. Osorto, 19-11408

• Decision Date: 20 April 2021
• Docket Number: No. 19-11408,19-11408
• Parties: UNITED STATES of America, Plaintiff - Appellant, v. Juan Carlos OSORTO, a.k.a. Jose Angel Soriano-Osorto, Defendant – Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

995 F.3d 801

UNITED STATES of America, Plaintiff - Appellant,

v.Juan Carlos OSORTO, a.k.a. Jose Angel Soriano-Osorto, Defendant – Appellee.

No. 19-11408

United States Court of Appeals, Eleventh Circuit.

April 20, 2021

Peter J. Sholl, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, TAMPA, FL, for Plaintiff-Appellee.

Lynn Palmer Bailey, Federal Public Defender, Federal Public Defender's Office, Jacksonville, FL, Samuel Landes, Federal Public Defender's Office, Tampa, FL, Rosemary Cakmis, Federal Public Defender's Office, Orlando, FL, for Defendant-Appellant.

Before MARTIN, ROSENBAUM, and TALLMAN,^* Circuit Judges.

ROSENBAUM, Circuit Judge:

Title 8, United States Code, Section 1326(b) imposes higher maximum penalties on those who unlawfully reenter the United States if they do so after they were deported following certain types of convictions. See 8 U.S.C. § 1326(b). We have suggested two policies that Congress advanced when it enacted (and amended) this statute: (1) deterrence of those who have committed qualifying crimes from illegally reentering the United States, see United States v. Adeleke , 968 F.2d 1159, 1160–61 (11th Cir. 1992) ; and (2) the judgment that unlawful reentry into the United States after deportation following a qualifying conviction is a more serious crime than basic illegal reentry, United States v. Alfaro-Zayas , 196 F.3d 1338, 1341 n.5 (11th Cir. 1999) (per curiam). Besides these interests, the Supreme Court has also concluded that § 1326(b) addresses recidivism. See Almendarez-Torres v. United States , 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

In line with § 1326(b), the United States Sentencing Commission issued § 2L1.2(b)(2) of the United States Sentencing Guidelines Manual ("U.S.S.G."). Before the Sentencing Commission amended that guideline in 2016, § 2L1.2(b)(2) imposed an enhancement of as much as 16 levels to the offense level for illegal-reentry offenses when the defendant had previously been convicted of a single qualifying crime (other than illegal reentry) before he was deported at an earlier time. We have held that this guideline, which echoed § 1326(b) ’s enhanced penalties for illegally reentering the United States after being deported following a qualifying conviction, did not violate noncitizens’ equal-protection rights. See Adeleke , 968 F.2d at 1161.

When we did so, the Guidelines included no offense enhancement for the very same illegal-reentry defendant if he committed the same single other crime after he was deported for illegal reentry but before his current illegal-reentry prosecution. So in a 2015 study, the Sentencing Commission determined that two otherwise similarly situated illegal-reentry defendants who had committed the very same other crime—one before he was deported and one after—could wind up with very different offense levels: the sentencing range of the one who was convicted before his deportation could be as much as 23 times higher than that of the one convicted after his deportation but before his current prosecution for illegal reentry.

To more equitably reflect culpability and risk of recidivism embodied in § 1326(b), in 2016, the Sentencing Commission amended § 2L1.2(b) to decrease the maximum enhancement, in illegal reentry cases, for a pre-deportation conviction to 10 levels ( § 2L1.2(b)(2) ). At the same time, it added a new enhancement of up to 10 levels for a post-first-deportation conviction incurred before the immediate illegal-reentry offense ( § 2L1.2(b)(3) ).

Defendant-Appellant Juan Carlos Osorto was convicted of illegal reentry after the 2016 Guidelines went into effect. Because he had committed other offenses both before his original deportation and after it, but before his current illegal-reentry offense, he received offense-level increases under both subsections 2L1.2(b)(2) and (3). He now challenges both subsections as violations of, among other things, his equal-protection rights. Osorto (and the Dissent) argue that these guidelines, which apply to only illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice—once in the offense level and a second time in the Guidelines’ criminal-history calculation. Meanwhile, Osorto contends, citizens cannot illegally reenter the United States, and generally, no guidelines for other offenses count prior convictions in both the offense-level and criminal-history calculations. So in Osorto's view, subsections 2L1.2(b)(2) and (3) unlawfully discriminate against noncitizens.

We disagree. First, Osorto's challenge to § 2L1.2(b)(2) is foreclosed by our binding precedent in the form of Adeleke . Second, Osorto (and the Dissent) consider the wrong universe of individuals. Subsections 2L1.2(b)(2) and (3) do not apply to all noncitizens convicted of any crime in the United States; rather, they apply to only those noncitizens who both have illegally reentered the United States and have been convicted of other crimes. This is important because, third, through § 1326(b), Congress has determined that illegally reentering the United States after being deported following conviction on another crime is a more serious offense than simply illegally reentering the United States, and that conduct should be deterred. The challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b). Fourth, Congress has entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and appropriately punishes culpability and risk of recidivism—the interests the Sentencing Commission cited in issuing the challenged guidelines. Finally, subsections 2L1.2(b)(2) and (3) are rationally related to the Commission's stated interests in issuing them. So after careful consideration, and with the benefit of oral argument, we must uphold the guidelines at issue and affirm Osorto's sentence.

I. Background

Osorto pled guilty to a lone count of illegal reentry following a prior conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).

His presentence investigation report ("PSR") noted that Osorto had been convicted of two prior felonies: one before he was originally deported from the United States and one after he reentered, but before he pled guilty to the charge in this case. Among other things, and in accordance with U.S.S.G. § 2L1.2(b)(2)(A), the PSR recommended a ten-level increase to Osorto's base offense level of 8 because Osorto had been convicted of a felony with a sentence of at least five years before he was deported. And because of his conviction after he was ordered deported (which occurred after he illegally reentered the United States), the PSR recommended an additional four-level increase, pursuant to U.S.S.G. § 2L1.2(b)(3)(D). After crediting Osorto for his acceptance of responsibility, the PSR determined his total offense level to be 19. Based on the same two prior convictions, the PSR also determined that Osorto had a criminal-history category of III. As a net effect of these recommendations, the PSR calculated a Guidelines sentencing range of 37 to 46 months’ imprisonment.

Osorto filed a sentencing memorandum objecting. He asserted that the Guidelines placed unreasonable weight on his prior convictions. To address this problem, Osorto argued, the district court should vary downward by 7 levels to account for what Osorto described as the double-counting of his prior convictions under both the offense-level and criminal-history calculations of the Guidelines. Osorto also preserved an equal-protection challenge to the Guidelines, on the ground that they treat noncitizens differently (and more harshly) than other offenders. Nevertheless, Osorto conceded that Adeleke , 968 F.2d 1159, foreclosed his equal-protection challenge. Ultimately, Osorto requested a sentence at the upper end of a proposed sentencing range of 15 to 21 months’ imprisonment.

At Osorto's sentencing hearing, the district court adopted the PSR's factual statements and Guidelines calculations, and Osorto did not object. As a result, the district court determined Osorto's total offense level to be 19 and his criminal-history category to be III, corresponding to a Guidelines range of 37 to 46 months’ imprisonment. Consistent with his memorandum, Osorto argued for a downward variance, while the government sought a Guidelines sentence.

The court imposed a low-end Guidelines sentence of 37 months’ imprisonment and three years’ supervised release. In response, Osorto renewed his objections that the sentence was substantively unreasonable and violated Osorto's right to equal protection. The court overruled Osorto's objections, and Osorto filed a timely notice of appeal.

II. The Equal-Protection Challenges

A. Subsections 2L1.2(b)(2) and (3)

Osorto asserts equal-protection challenges to U.S.S.G. § 2L1.2(b) ’s enhancements, for prior convictions, to the base offense level for illegal reentry. As relevant here, § 2L1.2(b) imposes separate enhancements for convictions a defendant incurred both before he was ordered deported or removed for the first time ( U.S.S.G. § 2L1.2(b)(2) ) and after he was ordered deported or removed for the first time ( U.S.S.G. § 2L1.2(b)(3) ). Depending on the nature of the prior conviction and the length of the sentence for that conviction, subsections 2L1.2(b)(2) and (3) instruct the court to enhance the base offense level by between 2 and 10 levels. Osorto's particular pre-deportation felony conviction required a 10-level enhancement under this framework, see U.S.S.G. § 2L1.2(b)(2)(A), while his post-deportation felony conviction called for an additional 4-level enhancement, see U.S.S.G. § 2L1.2(b)(3)(D).

Though § 2L1.2(b) instructs that these enhancements for prior convictions be added to increase the offense level, the Guidelines consider the same prior...