United States v. Oneil Anthony Harris

Case: 17-14814 Date Filed: 04/20/2018 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-14814 Non-Argument Calendar ________________________ D.C. Docket No. 4:17-cr-10009-JLK-4 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ONEIL ANTHONY HARRIS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 20, 2018) Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges. PER CURIAM: Case: 17-14814 Date Filed: 04/20/2018 Page: 2 of 10 Defendant Oneil Harris appeals his 24-month sentence, imposed after he pled guilty to illegal reentry after deportation. On appeal, he argues that the district court’s upward variance from the guideline range constituted an abuse of discretion. After careful review, we affirm. I. BACKGROUND In March 2017, United States Customs and Border Protection officers located a disabled vessel approximately two nautical miles from Tavernier, Florida. The officers boarded the vessel and discovered 11 passengers below deck, none of whom had legal status in the United States or permission to enter the United States. Defendant, a citizen and national of Jamaica, was one of the passengers below deck. A subsequent investigation revealed that Defendant was ordered removed from the United States in December 2012. However, he was not physically removed from the United States until September 2016, following a conviction and imprisonment sentence in Illinois for possession with intent to deliver cannabis. Defendant was charged with illegal reentry after having been previously deported for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). He later pled guilty without the benefit of a plea agreement. Applying the 2016 Guidelines, the Presentence Investigation Report assigned Defendant a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a). 2 Case: 17-14814 Date Filed: 04/20/2018 Page: 3 of 10 Defendant received a two-level reduction for acceptance of responsibility, resulting in a total offense level of 6. He received three criminal history points for a June 2013 conviction in Illinois for possession with intent to deliver cannabis, for which he received an eight-year sentence. The PSR noted that Defendant was arrested in 2002 but failed to appear and was not convicted until 2013. Defendant also received two additional criminal history points because the present offense was committed while he was on parole for the 2013 drug offense, resulting in a criminal history category of III. Based on a total offense level of 6 and a criminal history category of III, Defendant’s guideline range was 2 to 8 months’ imprisonment. Prior to the sentencing hearing, the Government filed a motion for an upward variance. Specifically, the Government argued that the 2016 Guidelines provide for a 10-level enhancement under U.S.S.G. 2L1.2(b)(2)(A) if a defendant sustained a conviction for a felony offense and received a sentence of five years or more before the defendant was ordered removed from the United States for the first time. Because Defendant was not convicted of the felony drug offense until after he was ordered removed in 2012, the Government acknowledged that the ...

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