USCA11 Case: 22-12467 Document: 30-1 Date Filed: 04/20/2023 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12467 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN MELVIN DUPRE-PENA, a.k.a. Juan M. Pena, a.k.a. Wilberto Class, a.k.a. Adriano Pena Pena, Defendant-Appellant. ____________________ USCA11 Case: 22-12467 Document: 30-1 Date Filed: 04/20/2023 Page: 2 of 5 2 Opinion of the Court 22-12467 Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cr-20563-DPG-1 ____________________ Before JILL PRYOR, ANDERSON, and JULIE CARNES, Circuit Judges. PER CURIAM: Defendant Juan Dupre-Pena appeals his 24-month sentence for illegal reentry into the United States after removal in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Defendant claims the sentencing judge unlawfully applied a 10-level increase pursuant to USSG § 2L1.2(b)(3), a provision he argues is unconstitutional. As explained below, Defendant’s argument is foreclosed by binding circuit precedent. Accordingly, we affirm the sentence. BACKGROUND Defendant Juan Dupre-Pena, a citizen and native of the Do- minican Republic, illegally entered the United States more than 30 years ago at an unknown location. He was removed from the United States to the Dominican Republic in 1991 after completing a 2-year sentence in Massachusetts for unlawful distribution of co- caine. A few years later, Defendant used an alias to reenter the United States with an immigrant visa. He was removed from the United States a second time in 2004 after completing another sen- tence in Massachusetts for cocaine distribution and trafficking. Within a few months of his second removal, Defendant again reen- tered the United States using an alias. In 2016, he was removed USCA11 Case: 22-12467 Document: 30-1 Date Filed: 04/20/2023 Page: 3 of 5 22-12467 Opinion of the Court 3 from the United States to the Dominican Republic a third time after serving a 5-year sentence for distributing cocaine. Defendant was arrested in Miami in May 2019 for cocaine trafficking, having once again reentered the United States after be- ing removed multiple times. Following his arrest, Defendant was indicted and pled guilty to one count of illegal reentry after re- moval in violation of 8 U.S.C. § 1326(a) and (b)(2). The PSR as- signed Defendant a base offense level of 8 under USSG § 2L1.2(a). Citing Defendant’s most recent conviction for distributing cocaine, which occurred after his first removal from the United States and resulted in a sentence of 5 years or more, the PSR recommended a 10-level increase pursuant to USSG § 2L1.2(b)(3)(A). Factoring in a 2-level deduction for acceptance of responsibility, the PSR set De- fendant’s total offense at 15, yielding a recommended guidelines range of 24 to 30 months. At sentencing, Defendant agreed with the calculation in the PSR, but he objected to the 10-level increase applied under USSG § 2L1.2(b)(3)(A) on the ground that the provision “double counts” a defendant’s criminal history category and offense level. Defense counsel clarified during the sentencing hearing that this argument …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals