Yesterday the Eleventh Circuit handed down an interesting split panel opinion in US v. Osorto, No. 19-11408 (11th Cir. April 20, 2021) (available here). These paragraphs from the start of the majority opinion provides a flavor for the issues and the court's holding:
Defendant-Appellant Juan Carlos Osorto was convicted of illegal reentry after the 2016 Guidelines went into effect. Because he had committed other offenses both before his original deportation and after it, but before his current illegal-reentry offense, he received offense-level increases under both subsections 2L1.2(b)(2) and (3). He now challenges both subsections as violations of, among other things, his equal-protection rights. Osorto (and the Dissent) argue that these guidelines, which apply to only illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice — once in the offense level and a second time in the Guidelines’ criminal-history calculation. Meanwhile, Osorto contends, citizens cannot illegally reenter the United States, and generally, no guidelines for other offenses count prior convictions in both the offense-level and criminal-history calculations. So in Osorto’s view, subsections 2L1.2(b)(2) and (3) unlawfully discriminate against noncitizens.
We disagree. First, Osorto’s challenge to § 2L1.2(b)(2) is foreclosed by our binding precedent in the form of Adeleke. Second, Osorto (and the Dissent) consider the wrong universe of individuals. Subsections 2L1.2(b)(2) and (3) do not apply to all noncitizens convicted of any crime in the United States; rather, they apply to only those noncitizens who both have illegally reentered the United States and have been convicted of other crimes. This is important because, third, through § 1326(b), Congress has determined that illegally reentering the United States after being deported following conviction on another crime is a more serious offense than simply illegally reentering the United States, and that conduct should be deterred. The challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b). Fourth, Congress has entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and appropriately punishes culpability and risk of recidivism — the interests the Sentencing Commission cited in issuing the challenged guidelines. Finally, subsections 2L1.2(b)(2) and (3) are rationally related to the Commission’s stated interests in issuing them. So after careful consideration, and with the benefit of oral argument, we must uphold the guidelines at issue and affirm Osorto’s sentence.
Here is part of the start of the dissenting opinion by Judge Martin:
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 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.
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