United States v. Juan Carlos Osorto ( 2021 )

USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 1 of 51
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11408
________________________
D.C. Docket No. 8:18-cr-00519-RAL-AEP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JUAN CARLOS OSORTO,
a.k.a. Jose Angel Soriano-Osorto,
Defendant – Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 20, 2021)
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 2 of 51
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 (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-
*
The Honorable Richard C. Tallman, Circuit Judge for the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
2
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 3 of 51
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
3
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 4 of 51
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
4
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 5 of 51
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
5
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 6 of 51
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-
6
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 7 of 51
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
7
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 8 of 51
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
convictions again and separately for purposes of the criminal-history-category
determination. Osorto argues that subsections 2L1.2(b)(2) and (3) violate his right
to equal protection because non-U.S. citizens convicted of illegal reentry after order
of deportation or removal have their prior convictions counted against them twice
(once in calculating the offense level and once in determining the criminal-history
category), but U.S. citizens, who cannot be convicted of committing illegal reentry
after deportation, generally have their prior convictions held against them only
once 1—in the criminal-history determination.
1
Osorto acknowledges that “[a] few other guidelines in Chapter Two [of the Sentencing
Guidelines Manual] enhance the offense level for prior convictions.” Osorto’s Initial Br. at 10 n.4
(citing U.S.S.G. § 2K2.1 (the guideline applicable to felons in possession of firearms)). But he
distinguishes these guidelines from subsections 2L1.2(b)(2) and (3) for two reasons. First, he notes
that the only thing that makes a convicted felon’s possession of a firearm illegal is his prior
8
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 9 of 51
B. The framework for evaluating equal-protection challenges to federal
rules that are not enacted by Congress or the President requires us to
conduct both a due-process inquiry and an equal-protection analysis.
We review de novo Osorto’s constitutional challenges to subsections
2L1.2(b)(2) and (3) of the Sentencing Guidelines. See United States v. Pressley, 345
F.3d 1205, 1209 (11th Cir. 2003).
By its terms, the Fourteenth Amendment promises equal protection of state
law. U.S. Const. amend. XIV, § 1. But when it comes to equal protection of federal
law, the Fifth Amendment does that job. Hampton v. Wong, 426 U.S. 88, 100 (1976).
Unlike the Fourteenth Amendment, the Fifth Amendment contains no express equal-
protection clause. But the Fifth Amendment’s guarantee of due process embodies
within it the concept of equal justice under the law. Id.We employ the same type of equal-protection analysis under both the Fifth
and the Fourteenth Amendments. Id. Yet the extent of the protections under each
Amendment is not always the same. Id.One area where the scope of protections can differ between the Fifth and
Fourteenth Amendments is law that distinguishes between citizens and noncitizens.
criminal history, id., whereas illegal reentry after deportation is unlawful whether the noncitizen
has previously been convicted of another criminal offense or not. Second, he argues that the
enhancements under § 2L1.2(b) for prior convictions are steeper (and therefore harsher) than the
enhancements for prior convictions under other guidelines. Id. For purposes of our analysis, we
assume without deciding that subsections 2L1.2(b)(2) and (3) discriminate against some
noncitizens in ways that other guidelines do not discriminate against citizens (and other
noncitizens).
9
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 10 of 51
See id. at 100–01. That is so because the federal government enjoys the exclusive
authority to control immigration and to regulate the relationship between the United
States and noncitizen visitors. See id. at 101 n.21; Mathews v. Diaz, 426 U.S. 67, 81
(1976). And because questions relating to these areas “are frequently of a character
more appropriate to either the Legislature or the Executive than to the Judiciary[,]
. . . [t]he reasons that preclude judicial review of political questions[] also dictate a
narrow standard of review of decisions made by the Congress or the President in the
area of immigration and naturalization.” Mathews, 426 U.S. at 81–82. So while
state laws that discriminate against noncitizens are subject to strict scrutiny under
the Fourteenth Amendment, see Graham v. Richardson, 403 U.S. 365, 376 (1971),
federal laws that discriminate against noncitizens must pass only rational-basis
scrutiny under the Fifth Amendment, see Mathews, 426 U.S. at 83–85.
This dichotomy assumes, however, that the President or Congress enacts the
federal provision challenged. Hampton, 426 U.S. at 103, 105. Where, as is the case
here, a federal agency promulgates the rule in question, the rule must also survive a
procedural-due-process inquiry when it effects a deprivation of life, liberty, or
property. See id. at 102–03. Unlike the President and Congress, a federal agency
may not promulgate a rule regulating noncitizens without what can be deemed as
legitimate authorization to serve a specific “overriding national interest.” See id. at
103. And “due process requires that there be a legitimate basis for presuming that
10
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 11 of 51
the [agency’s] rule was actually intended to serve that [overriding national] interest.”
Id.The government can satisfy this due-process inquiry in one of two ways. See
id. First, Congress or the President can “expressly mandate[]” the rule, in which
case we would generally conclude that the agency adopted the rule because of “any
interest which might rationally be served” by it. Id. Second, when neither Congress
nor the President explicitly directs the rule, the agency’s rationale for it must identify
“interests on which that agency may properly rely in making a decision implicating
the constitutional and social values at stake.” Id. at 113–14.
If the agency-promulgated rule cannot survive this inquiry, we need not
conduct a substantive equal-protection review because the rule must be held
unconstitutional, regardless. Id. at 103. But if the rule passes procedural-due-
process muster, we then engage in rational-basis review to determine whether the
rule satisfies equal protection. See id.; Mathews, 426 U.S. at 83–85. Rational-basis
review considers whether the classification at issue is “rationally related to a
legitimate governmental purpose.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 446 (1985).
As we have explained, Osorto argues that the Sentencing Guidelines, which
are issued by the U.S. Sentencing Commission, a federal agency, unlawfully
recommend longer prison sentences for noncitizens convicted of illegal reentry after
11
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 12 of 51
other criminal convictions. A longer prison sentence obviously constitutes a
deprivation of liberty. So under the Fifth Amendment, it “must be accompanied by
due process.” Hampton, 426 U.S. at 103. As a result, the Constitution mandates
“some judicial scrutiny of the deprivation.” Id.
C. Subsections 2L1.2(b)(2) and (3) do not violate procedural due process.
Osorto’s case is not the first one where we’ve considered whether
enhancements for pre-deportation convictions (for which § 2L1.2(b)(2) provides)
transgress equal-protection rights. We addressed this same issue almost thirty years
ago in Adeleke, 968 F.2d 1159. When we did, though, we did not apply the Hampton
analysis.
Nevertheless, we concluded that enhancements for pre-deportation
convictions do not violate equal protection. Id. at 1160–61. And even though the
guideline we analyzed in Adeleke was an older version of today’s § 2L1.2(b)(2), the
two iterations are similar enough that, as Osorto concedes, under our prior-precedent
rule, we remain bound by that ruling to reach the same conclusion in Osorto’s case.
See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Other
courts have also rejected equal-protection challenges to the previous version of
§ 2L1.2(b)(2). See United States v. Ruiz-Chairez, 493 F.3d 1089, 1092 (9th Cir.
2007); see also United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir.
1993) (plain-error review).
12
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 13 of 51
But even if we were not bound by Adeleke, we would arrive at the same
conclusion, anyway, because under Hampton, due process and equal-protection law
require it. And since the same analysis that requires us to uphold § 2L1.2(b)(2) as
constitutional dictates that we also sustain § 2L1.2(b)(3), we analyze the challenged
provisions together.
As Hampton governs our analysis here, we review it in some detail. In
Hampton, lawfully admitted resident noncitizens challenged the Civil Service
Commission’s (“CSC”) regulation precluding noncitizens from employment in the
federal competitive civil service. See 426 U.S. at 90 & n.1. The Supreme Court
held that the regulation violated procedural due process. See id. at 103–17. It
reached this determination after analyzing the rule in six steps.
First, the Court assumed that had Congress or the President expressly imposed
the same citizenship requirement, that requirement “would be justified by the
national interest in providing an incentive for aliens to become naturalized, or
possibly even as providing the President with an expendable token for treaty
negotiating.” Id. at 105. Put simply, it would pass rational-basis equal-protection
review.
Second, the Court examined whether Congress or the President had “required
the [CSC] to adopt” the challenged rule. See id. at 105, 110. As the Court explained,
were that the case, the Court would consider the wide set of justifications supplying
13
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 14 of 51
a rational basis for the rule. See id. at 105. But the Court found it “perfectly clear”
that neither Congress nor the President had directed the CSC to adopt the rule. Id.
Nor did the Court see any basis for concluding that Congress or the President ratified
the rule after the CSC promulgated it. See id. at 106–13.
Third, although neither Congress nor the President “expressly imposed” the
challenged CSC rule, the Court noted that it had existed for nearly a century and that
both branches had acquiesced in it. Id. at 105. To evaluate the significance of that
acquiescence, the Court considered “the extent to which the policy ha[d] been given
consideration by Congress or the President, and the nature of the authority
specifically delegated to the [CSC].” Id.
The Court acknowledged that the President had previously issued an
executive order that “authorized [the CSC] to establish standards with respect to
citizenship, age, education, training and experience, suitability, and physical and
mental fitness, and for residence or other requirements which applicants must meet
to be admitted to or rated in examinations.” Id. at 111. Nevertheless, the Court
concluded that “[t]his direction ‘to establish standard[s], with respect to citizenship’
is not necessarily a command to require citizenship as a general condition of
eligibility for federal employment.” Id. at 112.
The Court further observed that this Executive Order delegated to the CSC
the President’s authority, established by Congress, to authorize regulations “as will
14
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 15 of 51
best promote the efficiency of [the] Service.” See id. at 113 (quoting 5 U.S.C.
§ 3301(1)). Together, the Court concluded, the statute and Executive Order allowed
the CSC to “retain or modify the citizenship requirement without further
authorization from Congress or the President.” Id. In other words, the CSC had
general authority to issue rules related to citizenship as relevant to the agency’s
business. See id. But that statute, like other laws the Court reviewed, did not reflect
that Congress had approved or disapproved of the policy embodied in the challenged
regulation. See id. at 106–10, 113.
So fourth, the Court examined “whether the national interests which the
Government identifie[d] as justifications for the [CSC] rule are interests on which
that agency may properly rely in making a decision implicating the constitutional
and social values at stake.” Id. at 113–14. In so doing, the Court noted that the
CSC’s duties include the creation and enforcement of regulations that enhance the
smooth operation of the federal civil service. Id. at 114. In contrast, the CSC has
“no responsibility for foreign affairs, for treaty negotiations, for establishing
immigration quotas or conditions of entry, or for naturalization policies.” Id. Nor
is it “within the responsibility of the [CSC] to be concerned with the economic
consequences of permitting or prohibiting the participation by aliens in employment
opportunities in different parts of the national market.” Id. But, the Court
15
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 16 of 51
acknowledged, establishing regulations to “best promote the efficiency of the federal
civil service” does fall within the CSC’s bailiwick. Id.Fifth, the Court explored whether the one valid CSC interest the government
identified as supporting the rule—the administrative convenience of excluding all
noncitizens from the civil service to avoid having noncitizens in sensitive positions
where allegiance to the United States was appropriate—actually motivated the
agency to promulgate the challenged rule. Id. at 115. The Court concluded that it
did not. See id.As the Court observed, the CSC was supposed to serve as an expert in federal
civil-service matters. See id. For that reason, it was expected to demonstrate
expertise in handling its duties and to explain the reasons for its decisions. Id. Yet
nothing suggested that the CSC in fact engaged in “any considered evaluation of the
relative desirability of a simple exclusionary rule on the one hand, or the value to the
service of enlarging the pool of eligible employees on the other.” Id. And the Court
also could not presume that classifying positions whose duties necessarily demanded
citizenship would be difficult or burdensome for the CSC. Id. Had the CSC
attempted to classify federal civil-service positions, the Court reasoned, that action
would have shown that the CSC “had at least considered the extent to which the
imposition of the rule is consistent with its assigned mission.” Id. at 116 n.48. But
since it did not and no evidence supported the CSC’s stated administrative interest
16
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 17 of 51
in the challenged rule, the Court deemed that interest “nothing more than [the CSC’s]
hypothetical justification” for the rule. Id. at 115–16.
Sixth, the Court then weighed that “hypothetical justification” for the rule
against “the public interest in avoiding the wholesale deprivation of employment
opportunities caused by the [CSC’s] indiscriminate policy.” Id. Not surprisingly,
the Court concluded that the administrative rationale the government proffered in
litigation did not sufficiently justify the deprivation of liberty to satisfy due process.
Id. at 116–17.
With this framework in mind, we examine subsections 2L1.2(b)(2) and (3).
1. If Congress expressly imposed the increased penalties reflected in
subsections 2L1.2(b)(2) and (3), those penalties would be a valid exercise
of its authority to control immigration.
As in Hampton, we begin our procedural-due-process examination by
considering whether any justification would support the challenged rules, had they
been expressly imposed by one of the political branches. For example, could
Congress pass legislation mandating longer sentences for noncitizens convicted of
illegal reentry after they incurred other criminal convictions?
The answer is yes: Congress has plenary authority to control immigration,
including by defining criminal immigration offenses. United States v. Henry, 111
F.3d 111, 113–14 (11th Cir. 1997) (citing Pena-Cabanillas v. United States, 394
F.2d 785, 788 (9th Cir. 1968)). For that reason, 8 U.S.C. § 1326, the criminal statute
17
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 18 of 51
to which § 2L1.2 pertains, represents a valid exercise of this regulatory authority.
United States v. Hernandez-Guerrero, 147 F.3d 1075, 1078 (9th Cir. 1998). And
just as Congress could, by statute, define this offense, it could further specify
increased penalties for certain offenders, as the Sentencing Commission has
recommended under U.S.S.G. subsections 2L1.2(b)(2) and (3).
To that end, Congress enacted and later amended § 1326(b) to increase the
maximum illegal-reentry sentences for noncitizens whose previous removal
occurred after they were convicted of a felony. See Anti-Drug Abuse Act of 1988,
Pub. L. No. 100-690, § 7345(a)(2), 102 Stat. 4181, 4471 (1988); Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 130001(b)(1)(B)
and (b)(2), 108 Stat. 1796, 2023 (1994). As we have noted, the Supreme Court has
recognized that the increased maximum sentences under § 1326(b) express a
congressional policy to address recidivism. See Almendarez-Torres, 523 U.S. at
230.
Congress may have reasonably concluded that the prospect of such increased
sentences would deter noncitizens who previously sustained criminal convictions
from reentering unlawfully. In these ways, Congress’s enactment and amendment
of § 1326(b) evidence its determination of “overriding national interests,” Hampton,
426 U.S. at 101, in deterring noncitizens from illegally reentering the United States
18
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 19 of 51
after a criminal conviction, see Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169,
1174 (9th Cir. 2001).
2. Neither Congress nor the President mandated the Commission to
promulgate § 2L1.2(b)(2) or (3).
But despite Congress’s enactment and amendment of § 1326(b), and as in
Hampton, neither Congress nor the President required the rules under review here—
U.S.S.G. subsections 2L1.2(b)(2) and (3). To be sure, subsection 2L1.2(b)(2) echoes
§ 1326(b)’s increases in maximum penalties for noncitizens who illegally reenter the
United States after removal following conviction of another crime. But contrary to
the Dissent’s suggestion, see Dissent at 42–44, Congress never expressly mandated
the Sentencing Commission to promulgate either subsection 2L1.2(b)(2) or (3).
A rule that is “expressly mandated by the Congress or the President” is easily
identifiable: an agency issues it in response to a statute or executive order that, by
its language, “expressly” directs the agency to promulgate a rule or rules on a given
matter. And as Hampton explains, once an agency promulgates such a required rule,
the agency is not free to scrap the rule in the absence of congressional or executive
direction. See Hampton, 426 U.S. at 112 (that Congress or the President did not
adopt the citizenship rule in Hampton “is demonstrated by the elimination of the
citizenship requirement for employment in the Postal Service which took place after
this litigation commenced”).
19
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 20 of 51
By its own language, § 1326(b) does not direct any agency to issue any rules
of any type. Nor, as relevant to criminal sentencing, does it impose mandatory
minimum sentences for illegal reentry after deportation when the defendant was
convicted of a qualifying crime before he was deported the first time. Rather, it
simply allows higher maximum penalties for defendants previously removed after
sustaining certain criminal convictions. See 8 U.S.C. § 1326(b). In this way,
§ 1326(b) is broader than both subsections 2L1.2(b)(2) and (3), which refer to the
defendant’s first removal and convictions sustained before and after it, respectively.
See U.S.S.G. § 2L1.2(b)(2)–(3).
And although the Sentencing Commission submits its amended Guidelines to
Congress, 28 U.S.C. § 994(p), Congress did not enact legislation affirmatively
approving—or disapproving—the 2016 versions of subsections 2L1.2(b)(2) and
(3).2 At best, we can say that Congress acquiesced in them when it allowed them to
take effect. See Hampton, 426 U.S. at 107–08 (“When the [CSC] was created, it
immediately adopted the citizenship requirement, and that fact was duly reported to
Congress.”). Finally, in the ultimate test, nothing precludes the Sentencing
Commission from eliminating the enhancements in § 2L1.2(b)(2). As Hampton
2
Under 28 U.S.C. § 994(p), new and revised guidelines become effective if Congress does
not legislate to the contrary within 180 days of the Sentencing Commission’s submission of them
to Congress. See U.S. Sent’g Comm’n R. Prac. & Proc. 4.1.
20
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 21 of 51
shows, the Commission’s flexibility in this regard is inconsistent with the notion of
an express congressional mandate under § 1326(b). 3 See id. at 112.
Although § 1326(b) does not “expressly mandate” the Sentencing
Commission to issue any rules (guidelines), that does not end our analysis under
Hampton. Rather, we must consider Hampton’s alternative method for presuming a
rule was issued for the reason the agency asserts: whether the agency’s rationale for
the rule identifies “interests on which that agency may properly rely in making a
decision implicating the constitutional and social values at stake.” See id. at 114.
We therefore continue under the Hampton framework.
3. Congress’s enactment and amendment of § 1326(b) shows that Congress
has approved of the national interest that subsections 2L1.2(b)(2) and
(3) promote.
Next, we consider whether Congress or the President has given any indication
concerning its view of policies that the challenged rules support. We conclude that
Congress has.
As we have noted, § 1326(b) represents Congress’s approval of a national
policy to deter noncitizens from illegally reentering the United States after a criminal
3
We respectfully disagree with the Dissent’s suggestion that Adeleke “implicitly found that
Guideline § 2L1.2(b)(2) . . . implemented a ‘policy decision made by Congress and the President.’”
Dissent at 43 (quoting Hampton, 426 U.S. at 105). Adeleke did not mention Hampton. And as we
have explained, the text of § 1326(b) establishes that it did not “expressly mandate[]” that the
Sentencing Commission (or any other agency) promulgate any rule. Rather, Adeleke suggested
that § 1326(b) evidences a congressional policy judgment that noncitizens with other convictions
should be “strongly deterred from re-entering the United States.” See Adeleke, 968 F.2d at 1160.
21
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 22 of 51
conviction. We think that’s pretty clear evidence that Congress has considered and
agrees with the principles subsections 2L1.2(b)(2) and (3) promote. In
recommending longer prison terms for certain noncitizens convicted of illegal
reentry, subsections 2L1.2(b)(2) and (3) can reasonably be viewed as deterring those
with prior convictions from unlawfully reentering.
Subsection 2L1.2(b)(2) recommends a higher Guidelines offense level (and
therefore a potentially higher penalty) for anyone who illegally reenters the United
States after a first deportation that followed a qualifying conviction. In line with the
deterrent effect of § 1326(b)’s higher maximum penalties for those who illegally
reenter the United States after deportation following a qualifying conviction, a
higher recommended Guidelines sentence may reasonably be viewed as a deterrent
for some from unlawfully reentering the United States after being deported
following a qualifying conviction.
Subsection 2L1.2(b)(3) also furthers the interest of deterrence. That
subsection recommends a higher sentence for a person who illegally reenters the
United States and has incurred a qualifying other conviction after he was deported
for the first time but before his current illegal-reentry offense. According to the
Sentencing Commission’s 2015 study on illegal-reentry offenses, the 1,894 such
offenders in fiscal year 2013 whose exact number of prior deportations was known
averaged 3.2 deportations before the one for which he was being prosecuted in
22
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 23 of 51
2013. 4 U.S. Sent’g Comm’n, Illegal Reentry Offenses 14 (April 2015). Of that same
group of 1,894, 92% had at least one prior non-traffic conviction, and those that did
averaged 4.4 prior convictions. Id. at 16. These numbers establish that many of
those whom the United States chooses to prosecute for illegal reentry after
deportation both repeatedly unlawfully reenter the United States and have several
prior convictions. These facts are important to understanding how § 2L1.2(b)(3)
operates to deter additional illegal reentries.
As we have noted, § 2L1.2(b)(3) recommends an enhancement for a single
prior conviction incurred after a defendant’s first deportation. So to the extent that
a defendant is convicted of a qualifying offense after his first deportation but before
his second, for example, prior to reentering for a third time, § 2L1.2(b)(3)
recommends a higher sentence not only for the second illegal reentry but also for
any illegal reentries after that one. And while the higher sentence for the second
unlawful reentry cannot deter unlawful reentry that has already occurred, it can deter
future illegal reentries: a noncitizen who considers the law before illegally
reentering for a third or later time will know that his conviction incurred after his
4
The Commission was careful to note—and we likewise emphasize—that its conclusions
applied to only those noncitizens sentenced under § 2L1.2 in 2013 and were not representative of
all noncitizens not lawfully present in the United States. See Illegal Reentry Offenses at 2 (noting
that “the information [in the report] should not be interpreted as representative of the characteristics
of illegal immigrants generally”).
23
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 24 of 51
first deportation but before his second will cause him to receive an enhancement
under § 2L1.2(b)(3).
The Dissent asserts that we have “read Congressional expressions of policy
preferences too broadly.” Dissent at 46. We respectfully disagree. Rather, we
construe the congressional policy judgment behind § 1326(b)—deterrence of those
who have been deported and who have other convictions, from illegally reentering
the United States again—exactly as we suggested in our binding precedent nearly
30 years ago. See Adeleke, 968 F.2d at 1160–61. For these reasons, the Sentencing
Commission’s issuance of subsections 2L1.2(b)(2) and (3) is unlike the situation in
Hampton, where the Court could discern no clear policy or statement of national
interest that Congress or the President had made that might support the CSC rule at
issue. See Hampton, 426 U.S. at 109–10.
4. When it promulgated subsections 2L1.2(b)(2) and (3), the Sentencing
Commission properly relied on interests within its purview.
We turn fourth to whether the Sentencing Commission’s stated rationales for
promulgating subsections 2L1.2(b)(2) and (3) qualify as valid considerations for the
agency. We conclude that they do.
With respect to both subsections 2L1.2(b)(2) and (3), the Commission
reasoned that “the new specific offense characteristics more appropriately provide
for incremental punishment to reflect the varying levels of culpability and risk of
recidivism reflected in illegal reentry defendants’ prior convictions.” U.S.S.G. am.
24
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 25 of 51
802, Reason for Amendment. As to § 2L1.2(b)(3) in particular, the Commission
further expounded on this rationale, opining “that a defendant who sustains criminal
convictions occurring before and after the defendant’s first order of deportation
warrants separate sentencing enhancement.” Id.
These concerns—that sentences reflect culpability and risk of recidivism—
fall properly within the province of the Sentencing Commission. Congress created
the Commission to “establish sentencing policies and practices for the Federal
criminal justice system,” which includes immigration crimes. 28 U.S.C.
§ 991(b)(1). In fulfilling its mission, the Commission must, among other things,
ensure that sentencing policies and practices “reflect the seriousness of the offense,
. . . provide just punishment for the offense[,] . . . afford adequate deterrence to
criminal conduct[,] . . . [and] protect the public from further crimes of the defendant.”
18 U.S.C. § 3553(a)(2); see 28 U.S.C. § 991(b)(1)(A). These are just different ways
to say “culpability” and “risk of recidivism.” And the Commission was required to
consider “the kinds of sentences available,” 18 U.S.C. § 3553(a)(3), including
Congress’s judgment to increase maximum sentences under § 1326(b).
To accomplish these tasks, the Commission formulates guidelines “regarding
the appropriate form and severity of punishment for offenders convicted of federal
crimes; . . . advise[s] and assist[s] Congress, the federal judiciary, and the executive
branch in the development of effective and efficient crime policy; and . . . collect[s],
25
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 26 of 51
analyze[s], research[es], and distribute[s] a broad array of information on federal
crime and sentencing issues.” Illegal Reentry Offenses, supra, at 1 n.1 (citing 28
U.S.C. § 995(a)(14), (15), and (20)). So the promulgation of guidelines that
reasonably could be expected to have the effect of deterring illegal reentries of those
who have committed other crimes is entirely consistent with the Sentencing
Commission’s duties and responsibilities.
Plus, the rationales of culpability and risk of recidivism logically support
Congress’s adopted national interest in deterring noncitizens with criminal
convictions from repeatedly illegally reentering. A noncitizen with criminal
convictions who knows that more severe punishment may follow repeated unlawful
reentries and the commission of additional crimes while unlawfully here is more
likely to be deterred from illegally reentering than a noncitizen with criminal
convictions who would not face increased penalties.
Unlike the CSC in Hampton, then, the Sentencing Commission could properly
rely on its stated interests—that punishments reflect culpability and risk of
recidivism—when it issued the challenged rules here. In other words, the rationale
underpinning subsections 2L1.2(b)(2) and (3) is not “far removed from [the
Sentencing Commission’s] normal responsibilities” but rather, falls squarely within
them. See Hampton, 426 U.S. at 105.
26
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 27 of 51
5. The Sentencing Commission appropriately relied on its expertise and a
study it undertook on sentencing for illegal-reentry offenses when it
promulgated subsections 2L1.2(b)(2) and (3).
Acting under its authority to study and distribute information on federal crime
and sentencing issues, see 28 U.S.C. § 995(a)(14), (15), the Sentencing Commission
conducted its 2015 study to analyze sentencings for illegal-reentry offenses. See
generally Illegal Reentry Offenses, supra. Among other things, the Commission
observed that roughly one in four cases resolved under the Sentencing Guidelines
involves a crime of illegally reentering the United States. Id. at 1.
Then the Commission analyzed the data from the sentencings of all 18,498
non-citizens with illegal-reentry convictions who were sentenced under § 2L1.2 in
fiscal year 2013. See id. at 1–2. At the time of the study and until the Commission
promulgated § 2L1.2(b)(3), § 2L1.2(b) provided for an offense enhancement of up
to sixteen levels, based solely on prior convictions conferred before the defendant
was previously deported or unlawfully remained in the United States. See U.S.S.G.
§ 2L1.2(b) (2015). In contrast, the guideline contained no enhancement for prior
convictions endured after the defendant was previously deported or ordered
removed. See id.
To show the impact of the then-existing § 2L1.2(b) enhancement for prior
convictions, the Commission’s report used the example of a defendant with a
criminal-history category of III, meaning that the defendant necessarily had prior
27
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 28 of 51
convictions of some type. See Illegal Reentry Offenses at 6–7. As the Commission
noted, such a defendant whose conviction occurred before his initial deportation and
whose conviction qualified for the 16-level enhancement would have a Guidelines
range of 46 to 57 months’ imprisonment (assuming a deduction for acceptance of
responsibility). Id. But the Guidelines range for a defendant whose otherwise-
identical criminal history occurred after his initial deportation would be 2 to 8
months’ imprisonment. See id. As a result, the Commission pointed out, the
defendant with the pre-deportation conviction would face a Guidelines range 23
times higher than the defendant with no pre-deportation convictions. Id.
Although 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b) did not at that time
“provide for enhancements based on convictions for offenses committed after an
offender illegally reentered the country,” the report noted that “48.0 percent of all
offenders in the sample were convicted of at least one post-reentry offense [other
than illegal entry or reentry].” Id. at 18. The Sentencing Commission also remarked
that under the then-existing § 2L1.2(b), defendants who did not receive an
enhancement for prior convictions nonetheless had, on average, “2.0 prior
convictions and 1.8 prior sentencing events.” Id. at 20. Yet the then-existing
enhancement often did not apply because “the convictions occurred after the most
recent illegal reentry.” See id. Ultimately, the Sentencing Commission described
the high rate of defendants with prior convictions who did not receive an
28
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 29 of 51
enhancement under then-existing § 2L1.2(b) as a “key finding,” emphasizing that
“[a] significant proportion of illegal reentry offenders committed serious offenses—
including drug-trafficking and violent offenses—between the time that they were
first deported and their arrest for the instant illegal reentry offense.” Id. at 27–28.
In the aftermath of the Sentencing Commission’s report on illegal-reentry
offenses, in 2016, the Commission revised its prior-conviction enhancements for
those convicted of illegal reentry. Whereas the pre-2016 § 2L1.2(b) guideline
imposed up to a sixteen-level enhancement for a single prior conviction incurred
before the defendant’s previous deportation, the revised version of the guideline, as
we have noted, lowered the maximum enhancement for a pre-deportation conviction
to ten levels. But through § 2L1.2(b)(3), the revised version also announced for the
first time up to a ten-level enhancement for prior convictions sustained after the
defendant’s first deportation.
In the explanation accompanying Amendment 802 to the Sentencing
Guidelines, which made these changes, the Commission identified its reasons for the
modifications to § 2L1.2(b). The Commission first noted that the amendment
resulted from “the Commission’s multi-year study of immigration offenses and
related guidelines, and reflect[ed] extensive data collection and analysis relating to
immigration offenses and offenders.” U.S.S.G. am. 802, Reason for Amendment.
Indeed, the Commission explained, “[b]ased on this data, legal analysis, and public
29
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 30 of 51
comment, the Commission identified a number of specific areas where changes were
appropriate.” Id.
Among these were the changes to § 2L1.2(b)(2) and the addition of
§ 2L1.2(b)(3). As the explanation remarked, Amendment 802 addressed concerns
about, among other things, the perceived inequality between recommended
sentences for those convicted of prior offenses before deportation and those
convicted after. See id. (“The amendment addresses these concerns by accounting
for prior criminal conduct in a broader and more proportionate manner.”).
The Dissent attempts to minimize the Commission’s study as “just a data
collection project that recites various statistical findings and explains the
Commission’s methodologies.” Dissent at 48. Although we respectfully disagree
with that characterization, 5 even if it were accurate, the Commission noted that it
used this statistical analysis, along with “legal analysis” and “public comment” to
arrive at the 2016 amendments to § 2L1.2(b). That is a textbook example of
employing agency expertise to promulgate rules and regulations.
Of course, the Sentencing Commission’s reliance on its expertise to carefully
study what it perceived to be a problem in the sentencing of illegal-reentry offenders
and to use the results of its analysis to promulgate the current versions of
5
As we have noted, the study identified certain inequities in pre-2016 § 2L1.2(b). It also
made “key findings” based on its statistical analysis.
30
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 31 of 51
subsections 2L1.2(b)(2) and (3) stands in marked contrast to what the CSC did in
Hampton. There, as the Supreme Court noted, the CSC failed to apply any of its
expertise and to undertake any kind of analysis of the need to limit noncitizens’
employment in federal jobs. See Hampton, 426 U.S. at 115–16 & n.48. So once
again, this case differs in an important way from the factual situation at issue in
Hampton.
6. The Sentencing Commission’s stated rationales that sentencing reflect
culpability and risk of recidivism, as narrowly addressed to only those
noncitizens who have previously been deported and who have prior
convictions, sufficiently justify the deprivation of liberty that
subsections 2L1.2(b)(2) and (3) recommend.
Last, we must consider whether the Sentencing Commission’s stated
rationales for subsections 2L1.2(b)(2) and (3) sufficiently justify the deprivation of
liberty that they recommend. We conclude that they do.
Both Osorto and the Dissent contend that subsections 2L1.2(b)(2) and (3)
discriminate against noncitizens because these guidelines, by definition of the crimes
they cover, apply to only noncitizens and because they double-count prior
convictions, while other guidelines that apply to citizens count prior convictions only
once—in the criminal-history calculation. See Dissent at 40-41.
We respectfully disagree with Osorto and the Dissent’s characterization of the
guidelines. Subsections 2L1.2(b)(2) and (3) pertain to only those noncitizens who
are unlawfully in the United States and have committed another crime while illegally
31
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 32 of 51
here. As for the other guidelines that only single-count prior convictions, they apply
equally to all citizens and all noncitizens (including those noncitizens who are
unlawfully in the United States). So the group of individuals arguably discriminated
against by subsections 2L1.2(b)(2) and (3)’s double-counting is not all noncitizens;
it is the smaller subset of noncitizens who are unlawfully present in the United States
and have also committed at least one other qualifying violation. Cf. Cardenas-
Alvarez, 987 F.2d at 1134 (noting that “the guidelines were devised to and do treat
all persons with aggravated felonies who commit this crime equally”).
But significantly, these individuals are being prosecuted under § 1326(b) for
the very reason that they are unlawfully in the United States. That is their crime as
defined by Congress.
And that fact is important to our due-process analysis because we have
observed that § 1326(b)’s increased maximum sentences for defendants with prior
convictions indicates “a Congressional [judgment] that . . . the prior conviction is a
critical part of what makes the current reentry wrongful.” Alfaro-Zayas, 196 F.3d at
1341 n.5 (citation and quotation marks omitted). That is to say, Congress determined
that illegally being present in the country after already having been convicted of
otherwise violating the law here makes the crime of illegally being in the United
States a different and worse crime than it would be in the absence of the prior
conviction. For that reason, considering the prior convictions in the criminal-history
32
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 33 of 51
calculation does not capture what we have described as the nature of the crime at
issue here.
And since Congress was concerned that other offenses a noncitizen commits
while unlawfully here are what make this crime more consequential than illegal
reentry by itself, it does not matter to the gravity of the crime whether the noncitizen
was convicted of other offenses before (§ 2L1.2(b)(2)) or after (§ 2L1.2(b)(3)) he
was deported the first time—as long as he was convicted of them. Similarly, because
Congress sought to deter noncitizens with prior convictions from repeatedly
reentering the United States, again, it makes no difference if the noncitizen was
convicted of another crime before (§ 2L1.2(b)(2)) or after (§ 2L1.2(b)(3)) he was
deported the first time; as we have explained, the national interest of deterrence
embodied in § 1326(b) is consistent with deterring both kinds of conduct.
Subsections 2L1.2(b)(2) and (3) are therefore narrowly targeted to address the
same national interest that Congress embraced when it enacted § 1326(b). The
guidelines in question do not affect noncitizens who are lawfully present in the
United States, and they don’t apply to noncitizens who are illegally here if they have
not committed other crimes while in the country.
Rather, they are directed solely at those noncitizens who have previously been
deported after a prior conviction here and seek to reenter, and those who have
previously been deported and have committed other crime here after their first
33
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 34 of 51
deportation. Subsections 2L1.2(b)(2) and (3) also are designed to more evenly and
accurately reflect culpability and risk of recidivism: rather than, as happened under
the prior version of § 2L1.2(b)(2), recommending grossly disparate sentences for
two noncitizens who unlawfully reenter after deportation and who have committed
the same other crime—one before his first deportation and one after—the current
version of the guidelines would recommend the same sentence for both defendants.
Put another way, subsections 2L1.2(b)(2) and (3) now apply a more equal and less
lopsided approach to culpability, risk of recidivism, and deterrence.
For all these reasons, the Sentencing Commission’s promulgation of
subsections 2L1.2(b)(2) and (3) is appreciably different from the CSC’s issuance of
the rule at issue in Hampton. So under the Hampton framework, we must conclude
that subsections 2L1.2(b)(2) and (3) satisfy procedural due process.
D. The guidelines at subsections 2L1.2(b)(2) and (3) do not violate equal
protection.
Because subsections 2L1.2(b)(2) and (3) do not offend procedural due
process, we turn next to the equal-protection analysis. That requires us to consider
whether subsections 2L1.2(b)(2) and (3) bear a rational relationship to the interests
the Commission relied on—ensuring sentences reflect culpability and risk of
recidivism. We conclude that they do.
Consistent with Congress’s judgment as reflected in § 1326(b), the
Commission could have reasonably determined that the sentence of a noncitizen who
34
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 35 of 51
illegally enters this country more than once and commits crimes when here
illegally—whether he does so before or after he has been ordered deported or
removed for the first time—should reflect that he is more blameworthy than a
noncitizen who simply illegally enters the United States more than once but is
otherwise law-abiding while here. It likewise rationally could have concluded that
a noncitizen who illegally enters the United States more than once and also engages
in other criminal activity while here poses a greater risk of unlawfully returning to
the United States in the future. Because Fifth Amendment equal-protection analysis
demands nothing more, we must conclude that the post-deportation conviction
enhancement does not violate equal protection.
E. Section 2L1.2 does not violate Congress’s directive that sentences be
neutral as to national origin.
Osorto separately argues that by treating noncitizens differently from citizens,
§ 2L1.2 also violates Congress’s directive that sentencing be neutral as to national
origin. See 28 U.S.C. § 994(d). We respectfully disagree.
As we have explained, § 994(d) means that national origin, among other
factors, is “completely irrelevant for sentencing purposes.” United States v. Burgos,
276 F.3d 1284, 1291 (11th Cir. 2001) (citations and internal quotation marks
omitted). Although we have not addressed this question previously, we join other
circuits in recognizing that alienage—not being a citizen of the United States—
differs from national origin, i.e. the particular country in which one was born. See
35
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 36 of 51
United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993); United States v.
Nnanna, 7 F.3d 420, 422 (5th Cir. 1993) (per curiam); United States v. Smith, 27
F.3d 649, 654 (D.C. Cir. 1994); United States v. DeBeir, 186 F.3d 561, 569 (4th Cir.
1999). For that reason, § 2L1.2 did not unlawfully require the district court to
consider national origin in imposing Osorto’s sentence.
III. Substantive Reasonableness
Finally, Osorto argues that his sentence of 37 months’ imprisonment is
substantively unreasonable. We review for abuse of discretion the substantive
reasonableness of a sentence. United States v. Plate, 839 F.3d 950, 956 (11th Cir.
2016). Because Osorto challenges the sentence, he must shoulder the burden of
demonstrating that the sentence is unreasonable, considering the complete record,
the § 3553(a) factors, and the substantial deference we give sentencing courts.
United States v. Gomez, 955 F.3d 1250, 1255 (11th Cir. 2020) (per curiam). He
cannot make that showing here.
Osorto bases his argument that his sentence is substantively unreasonable on
his contention that the district court “gave significant weight to an impermissible
consideration”—namely, the subsection 2L1.2(b)(2) and (3) enhancements for his
prior convictions. Osorto asserts that the district court could not permissibly rely on
36
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 37 of 51
these enhancements because they violate equal protection. We have already
explained why that is not so. 6
To the extent that Osorto’s argument can be construed as alleging
impermissible double-counting under the Sentencing Guidelines, that, too, fails. We
conduct de novo review of a double-counting objection to the Guidelines. United
States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999).
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” United States v. Whyte, 928 F.3d 1317, 1338 (11th Cir. 2019) (citation
and quotation marks omitted). Nevertheless, we have explained that double-
counting is allowable “if the Sentencing Commission intended the result, and . . .
each section [applied] concerns conceptually separate notions relating to
sentencing.” Adeleke, 968 F.2d at 1161 (citations and internal quotation marks
omitted).
In Adeleke, we explained that an earlier version of § 2L1.2(b)(2) and the
Chapter Four criminal-history guidelines do not impermissibly double-count prior
6
In his reply brief, Osorto also argues that his sentence was substantively unreasonable
because the Sentencing Commission did not rely on empirical data and merely sought to
implement Congress’s scheme for maximum punishment. But Osorto abandoned these arguments
by not raising them in his opening brief. See United States v. Levy, 379 F.3d 1241, 1244 (11th Cir.
2004) (per curiam). So we do not consider them here.
37
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 38 of 51
convictions because the Sentencing Commission “clearly intended” this result and
because different policies—deterrence and recidivism, respectively—motivated
each provision. Id. We remain bound by that holding as to § 2L1.2(b)(2).
As for § 2L1.2(b)(3), we similarly conclude that the Sentencing Commission
undoubtedly intended for a noncitizen who illegally reentered the United States after
previous deportation or removal to have his post-deportation convictions accounted
for both in his offense conduct and in his criminal history. We know this because
the Sentencing Commission acknowledged this result. See U.S.S.G. § 2L1.2 cmt.
n.3 (“A conviction taken into account under subsection (b)(1), (b)(2), or (b)(3) is not
excluded from consideration of whether that conviction receives criminal history
points pursuant to Chapter Four, Part A (Criminal History).”). Plus, we presume
that the Sentencing Commission anticipated applying separate guideline sections
cumulatively, unless the Guidelines expressly indicate the contrary. Matos-
Rodriguez, 188 F.3d at 1310. Nothing in the Guidelines suggests that the
Commission did not intend the alleged double-counting result.
So we must consider whether § 2L1.2(b)(3) and Chapter Four (pertaining to
determination of the criminal-history category) involve conceptually separate
concerns related to sentencing. The criminal-history section of the Guidelines
embodies concerns related to punishing recidivists more severely. Adeleke, 968 F.2d
at 1161. Even if § 2L1.2(b)(3)’s purpose relating to recidivism echoes that of
38
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 39 of 51
Chapter Four, § 2L1.2(b)(3)’s concern regarding culpability for the particular
offense for which the defendant is being sentenced does not. Rather, as the
Commission’s Illegal Reentry Offenses report suggests and consistent with our
precedent on § 1326(b), § 2L1.2(b)(3) contemplates a harm—the act of committing
other crimes while illegally in the United States—that is separate from the one
Chapter Four seeks to address generally. Consequently, § 2L1.2(b)(3) does not
engage in unlawful double-counting.
Osorto offers no other reasons why his sentence is substantively unreasonable,
and we find no basis for concluding that it is. The district court stated that it had
considered all the § 3553(a) factors and the Sentencing Guidelines, and it
emphasized Osorto’s history and characteristics in imposing his sentence. In
addition, Osorto’s sentence falls at the low end of his Guidelines range. We
generally anticipate that a sentence within the Guidelines range is reasonable.
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). And
at 37 months, it falls well below the statutory maximum term of 20 years’
imprisonment. See 8 U.S.C. § 1326(b)(2). A sentence that comes in far below the
statutory maximum penalty is another indicator of reasonableness. Gomez, 955 F.3d
at 1260. In sum, we hold that the district court did not abuse its discretion, and
Osorto’s sentence is substantively reasonable.
39
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 40 of 51
IV. Conclusion
We hold that the Sentencing Guidelines’ enhancements under
subsections 2L1.2(b)(2) and (3), for criminal convictions received before and after
the defendant’s previous deportation or removal, do not violate the Constitution’s
guarantee of equal protection. Nor do they cause unlawful double-counting in
violation of due process or otherwise. We also conclude that the sentence imposed
in this case is substantively reasonable. For these reasons, we affirm.
AFFIRMED.
40
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 41 of 51
MARTIN, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that we are bound by United States v. Adeleke, 968
F.2d 1159 (11th Cir. 1992) to reject Mr. Osorto’s equal protection challenge to
United States Sentencing Guideline § 2L1.2(b)(2). I write separately about the
other subsection of that Guideline at issue here (§ 2L1.2(b)(3)), however, because I
do not believe it passes constitutional muster.
Mr. Osorto challenges Guideline § 2L1.2(b)(3) on equal protection grounds.
This Guideline makes for tougher sentences for defendants who commit a
designated offense after reentering the United States without authorization. See
USSG § 2L1.2(b)(3). This list of designated offenses does not include the offense
of unauthorized reentry itself. See id. Meanwhile, a defendant is already punished
for both the unauthorized reentry and any other offense that leads to the increased
punishment imposed by § 2L1.2(b)(3) on account of the calculation of a
defendant’s criminal history under the Sentencing Guidelines. See USSG §
4A1.1(b). The result is that any offense committed after unauthorized reentry is
double-counted for noncitizens in their Guideline calculation based on little more
than their immigration status. Sentencing Guideline § 2L1.2(b)(3) therefore
subjects noncitizen defendants to more severe punishment than citizens who
commit the same crime. Mr. Osorto argues that this more severe punishment
41
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 42 of 51
imposed upon him because he is a noncitizen violates his Fifth Amendment right
to equal protection of the laws. U.S. Const. Amend. V; see United States v.
Windsor, 570 U.S. 744, 774, 133 S. Ct. 2675, 2695 (2013) (“The liberty protected
by the Fifth Amendment’s Due Process Clause contains within it the prohibition
against denying to any person the equal protection of the laws”). I believe he is
right.
I.
I start from the premise that discrimination based on “alienage, like [that]
based on nationality or race, [is] inherently suspect and subject to close judicial
scrutiny.” Graham v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 1852 (1971)
(footnotes omitted). In deciding that, under the Fourteenth Amendment as applied
to the states, classifications based on alienage are subject to heightened scrutiny,
the Supreme Court observed that noncitizens “are a prime example of a discrete
and insular minority for whom such heightened judicial solicitude is appropriate.”
Id. (quotation marks and citation omitted). I recognize that the Supreme Court
made a significant departure from this principle when it afforded rational basis
review to classifications based on “alienage” made by Congress and the President.
Mathews v. Diaz, 426 U.S. 67, 83, 87, 96 S. Ct. 1883, 1893, 1895 (1976). The
Court reasoned Congress and the President are charged with “the responsibility for
regulating the relationship between the United States” and our noncitizen visitors
42
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 43 of 51
and thus needed more “flexibility in policy choices” than would be appropriate for
the states. Id. at 81, 96 S. Ct. at 1892.
But the Supreme Court also set a vital limiting principle to its Diaz holding.
It clarified that the federal power over noncitizens is not “so plenary that any agent
of the National Government may arbitrarily subject all resident [noncitizens] to
different substantive rules from those applied to citizens.” Hampton v. Wong, 426
U.S. 88, 101, 96 S. Ct. 1895, 1904 (1976). In Hampton, the Supreme Court
applied heightened scrutiny to a rule promulgated by the Civil Service Commission
that excluded noncitizens from federal employment. Id. at 90, 96 S. Ct. at 1899.
Upon application of heightened scrutiny, it held that the rule was unconstitutional.
Id. at 115–17, 96 S. Ct. at 1911–12. In so doing, the Court set up a framework for
deciding when classifications based on alienage made by federal agencies (not
Congress or the President directly) are reviewed under the rational basis test.
Hampton says it is only when an agency “has direct responsibility for fostering or
protecting” an “overriding national interest” or when the rule is “a policy decision
made by Congress and the President” that it will be subject to rational basis review.
Id. at 103, 105, 96 S. Ct. at 1905, 1906.
As Mr. Osorto noted, when a panel of this Court held that what is now
Guideline § 2L1.2(b)(2) did not violate equal protection, it never cited Hampton.
Adeleke, 968 F.2d at 1160–61. However, in holding that § 2L1.2(b)(2) rationally
43
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 44 of 51
furthered the interest in deterring unauthorized reentry, the panel noted that
Congress expressly adopted this policy by enacting 8 U.S.C. § 1326(b), which
delineated certain punishments for noncitizens “whose deportation was subsequent
to a conviction for commission of a felony.” See id. (quotation marks and
emphasis omitted). Thus I understand the Adeleke panel to have implicitly found
that Guideline § 2L1.2(b)(2) was subject to rational basis review because it
implemented a “policy decision made by Congress and the President.” Hampton,
426 U.S. at 105, 96 S. Ct. at 1906.
But the Adeleke panel did not give the same treatment to Guideline
§ 2L1.2(b)(3). This Guideline, enacted after Adeleke, mandates a four-level
increase in the offense level for noncitizens convicted of certain offenses after they
have already reentered the United States without authorization. USSG
§ 2L1.2(b)(3). The government argues that this Guideline serves the same purpose
as Guideline § 2L1.2(b)(2): deterring unauthorized reentry. But logically that
cannot be the case. The only noncitizens eligible for the § 2L1.2(b)(3) are those
who have already reentered and committed another designated offense. This does
not include an enhancement (harsher punishment) for the offense of unauthorized
entry itself. USSG § 2L1.2(b)(3). In contrast to the government’s argument, the
Sentencing Commission itself pointed to deterrence as the rationale for
§ 2L1.2(b)(2) but not § 2L1.2(b)(3). See USSG am. 802, Reason for Amendment
44
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 45 of 51
(“The (b)(2) specific offense characteristic reflects the same general rationale as
the illegal reentry statute’s increased statutory maximum penalties for offenders
with certain types of serious pre-deportation predicate offenses[.]” (citing 8 U.S.C.
§ 1326(b)). The Commission cannot, as it could with § 2L1.2(b)(2), rely on
Congress’s express approval to justify the harsher penalty for noncitizens reflected
in § 2L1.2(b)(3). Plainly, with § 2L1.2(b)(3), the Commission did not implement a
rule or policy expressly mandated or approved by Congress or the President. See
id.
The majority says that § 1326(b) constitutes Congressional endorsement of
§ 2L1.2(b)(3) because it “also furthers the interest of deterrence,” in that it might,
theoretically, “deter future illegal reentries.” Maj. Op. at 22, 23. But this reads
both § 1326(b) and Hampton too broadly. Section 1326(b) applies only to
noncitizens “whose removal was subsequent” to certain convictions. 8 U.S.C. §
1326(b)(1)–(2). Therefore, we cannot say that it explicitly endorses the specific
policy embodied by § 2L1.2(b)(3). And Hampton directs us not to construe
indications of endorsement by Congress or the President too broadly. Hampton
expressly rejected the idea that Congress endorsed the Civil Service Commission’s
rule just because it “repeatedly identified citizenship as one appropriate
classification of persons eligible for compensation for federal service” which
“implies a continuing interest in giving preference, for reasons unrelated to the
45
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 46 of 51
efficiency of the federal service, to citizens over [noncitizens].” 426 U.S. at 109,
96 S. Ct. at 1908. The Court also rejected a number of other indicia of Congress’s
endorsement of the Civil Service Commission’s rule. Among the indicia rejected
by the Court was the idea that Congress assumed that the Commission would adopt
that rule (thus obviating the need to direct the Commission to do so in legislation)
and the fact that the Commission “duly reported” the rule to Congress, which never
repudiated it. Id. at 106, 107–08, 96 S. Ct. at 1907–08.
Instead of looking to the general policy preferences that Congress and the
President expressed, Hampton looked to the fact that neither had “expressly
prescribe[d]” the rule adopted by the Commission. Id. at 110, 96 S. Ct. at 1908. In
that case, not even an executive order directing the Civil Service Commission to
establish employment eligibility standards “with respect to citizenship” was
sufficient to constitute endorsement of the specific rule the Commission in fact
adopted. Id. at 112, 96 S. Ct. at 1909 (quotation marks omitted).
The Supreme Court’s preoccupation with upholding only those alienage
classifications expressly endorsed by Congress or the President is explained by the
distinction Hampton made between those federal entities that are charged with the
plenary power over immigration and those that are not. See id. at 100–02, 96 S.
Ct. at 1904–05. And that distinction is essential to safeguarding the right of
noncitizens to equal protection under the law. Hampton limits the extent to which
46
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 47 of 51
federal agencies should receive extremely deferential rational basis review when it
comes to alienage discrimination. See id. at 101, 96 S. Ct. at 1904 (“We do not
agree . . . that the federal power over [noncitizens] is so plenary that any agent of
the National Government may arbitrarily subject [noncitizens] to different
substantive rules from those applied to citizens.”). I fear that if we read
Congressional expressions of policy preferences too broadly, as I believe the
majority does today, we undermine both the constitutional rights of noncitizens
and the exclusive authority of Congress and the President to decide when
differential treatment of noncitizens is truly necessary.
Similarly here, I would not read into § 1326(b) a general deterrence policy.
First, such a policy is not expressly addressed in § 1326(b). See 8 U.S.C.
§ 1326(b). Indeed, even the Sentencing Commission noted that § 1326(b) supplied
the rationale for § 2L1.2(b)(2) but not § 2L1.2(b)(3). See USSG am. 802, Reason
for Amendment. And the study cited by the majority lays out a forty-year history
of Congress amending § 1326(b). See Maj. Op. at 22–23, 26–30. At no point
during that history did Congress enact additional penalties for offenses committed
after reentry. See U.S. Sentencing Comm’n, Illegal Reentry Offenses 3–5 (April
2015), https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-projects-and-surveys/immigration/2015_Illegal-Reentry-
Report.pdf. Just as Hampton held that a history of enacting statutes and issuing
47
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 48 of 51
executive orders that accomplished similar goals was not an endorsement of the
Civil Service Commission’s rule, here too § 1326(b) cannot be extended to justify
differential treatment of noncitizens under § 2L1.2(b)(3).
Second, absent something more direct, I would not presume that Congress
thought that something so remote from an actual unlawful reentry had a deterrent
effect. The study the majority cites does not tell us that this harsher punishment
actually has any deterrent effect on unlawful entry. Indeed, that lack of evidence
may very well explain why Congress has never, over some four decades, enacted
harsher penalties for offenses committed after reentry.
II.
Because I do not believe Congress endorsed the policy embodied by
§ 2L1.2(b)(3), I would not analyze it using rational basis review.
After establishing that the Civil Service Commission was not acting in the
realm of immigration when it adopted the challenged regulation, the Court in
Hampton applied a heightened form of review to the only reason given by the
agency as within its purview. The Court recognized that “administrative
convenience” may supply a “rational basis” for the challenged rule, but
immediately rejected it as the proffered reason. Id. at 115, 96 S. Ct. at 1911. The
Court explained that, “[f]or several reasons that justification is unacceptable in this
case,” a suit brought by noncitizens alleging alienage discrimination. Id. Instead,
48
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 49 of 51
the Court took the Civil Service Commission to task for failing to “perform its
responsibilities with some degree of expertise, and to make known the reasons for
its important decisions.” Id. The Court noted the Commission’s expertise in
“personnel matters,” while also observing the Commission had failed to adequately
explain why the “administrative burden of establishing the job classifications for
which citizenship is an appropriate requirement would be a particularly onerous
task for [such] an expert.” Id.
Even accepting that this Guideline advances the Sentencing Commission’s
broader interest in reflecting the seriousness of certain offenses or risk of
recidivism, the Commission has not explained why those interests have not been
adequately addressed by other means that apply to citizens and noncitizens alike.
For example, the sentences that already apply to those underlying offenses or the
inclusion of those offenses in a defendant’s criminal history calculation may
already reflect the seriousness of the offense and the risk of recidivism.
The majority describes the statistical study that the Sentencing Commission
undertook before issuing § 2L1.2(b)(3) which noted the disparity that existed
between those whose offenses pre-dated and post-dated their removal. Maj. Op. at
28–29. But this study is not sufficient for at least two reasons. First, this study is
just a data collection project that recites various statistical findings and explains the
Commission’s methodologies. See generally Illegal Reentry Offenses. There is no
49
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 50 of 51
discussion of the effectiveness of harsher sentences as a deterrent or the values or
goals that varying sentences help to promote. Second, the disparity that the study
describes is accounted for by the fact that § 2L1.2(b)(2) acts to deter unlawful
reentry. There is no similar immigration-related deterrence value, at least none
expressly endorsed by Congress, that animates § 2L1.2(b)(3).1 And the study cited
by the majority never explains why the need to reflect culpability or risk of
recidivism outweighs the right of noncitizens to equal treatment, especially given
the weight of the liberty interest at stake: “freedom from imprisonment.” See
Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 2498 (2001) (“Freedom
from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due
Process] Clause protects.”); see generally Illegal Reentry Offenses. In the absence
of a justification that recognizes the discriminatory effect of § 2L1.2(b)(3) and
explains why differential treatment is necessary to advance an “overriding national
interest,” I am not convinced the Sentencing Commission has met its burden under
Hampton’s heightened scrutiny. Hampton, 426 U.S. at 103, 96 S. Ct. at 1905.
III.
1
And the Sentencing Commission could also have eliminated this disparity by simply
eliminating the enhancements in § 2L1.2(b)(2).
50
USCA11 Case: 19-11408 Date Filed: 04/20/2021 Page: 51 of 51
I believe the majority erred by finding that Congress endorsed the policy
advanced by § 2L1.2(b)(3). I fear the majority’s approach to Hampton undermines
the very framework its ruling instructed us to follow. For Mr. Osorto’s case, that
error leads to the preservation of a Sentencing Guideline that I believe
unconstitutionally deprives noncitizens of their liberty. For these reasons, I
respectfully dissent.
51