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 …
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