UNITED STATES OF AMERICA, Plaintiff - Appellant, versus JUAN CARLOS OSORTO, a.k.a. Jose Angel Soriano-Osorto, Defendant - Appellee.
No. 19-11408
United States Court of Appeals for the Eleventh Circuit
April 20, 2021
D.C. Docket No. 8:18-cr-00519-RAL-AEP-1
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
Before MARTIN, ROSENBAUM, and TALLMAN,* Circuit Judges.
In line with
To more equitably reflect culpability and risk of recidivism embodied in
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
We disagree. First, Osorto‘s challenge to
I. Background
Osorto pled guilty to a lone count of illegal reentry following a prior conviction
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
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
Though
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
By its terms, the
We employ the same type of equal-protection analysis under both the
One area where the scope of protections can differ between the
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 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 other criminal convictions. A longer prison sentence obviously constitutes a deprivation of liberty. So under the
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
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
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
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 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
The Court further observed that this Executive Order delegated to the CSC the President‘s authority, established by Congress, to authorize regulations “as will best promote the efficiency of [the] Service.” See id. at 113 (quoting
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 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 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
With this framework in mind, we examine
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,
To that end, Congress enacted and later amended
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
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
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“).
By its own language,
And although the Sentencing Commission submits its amended Guidelines to Congress,
shows, the Commission‘s flexibility in this regard is inconsistent with the notion of an express congressional mandate under
Although
§ 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,
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
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 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
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
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. 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.
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], 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
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.
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
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 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
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 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
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 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
And that fact is important to our due-process analysis because we have observed that
And since Congress was concerned that other offenses a noncitizen commits while unlawfully here are what make this crime
Subsections 2L1.2(b)(2) and (3) are therefore narrowly targeted to address the same national interest that Congress embraced when it enacted
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 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
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
As we have explained,
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
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 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
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 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 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
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
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
AFFIRMED.
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
Mr. Osorto challenges
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 and thus needed more “flexibility in policy choices” than would be appropriate for the states. Id.
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
As Mr. Osorto noted, when a panel of this Court held that what is now
But the Adeleke panel did not give the same treatment to
The majority says that
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 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
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
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, 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
III.
I believe the majority erred by finding that Congress endorsed the policy advanced by