At issue in this appeal were U.S.S.G. §§ 2L1.2(b)(2) and (b)(3). Section 2L1.2(b) imposes separate enhancements for convictions a defendant incurred both before he was ordered deported or removed for the first time (2L1.2(b)(2)) and after he was ordered deported or removed for the first time (2L1.2(b)(3)). Defendant challenged both as violations of his equal-protection rights. He reasoned that the guidelines, which apply only to illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice--once in the offense level and a second time in the criminal history calculation. Meanwhile, 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. Defendant also challenged the guidelines as violating Congress' directive that sentences be neutral as to national origin. Finally, he challenged the substantive reasonableness of his sentence.
The Court disagreed with defendant's equal protection challenge. In so doing, it conducted both a due-process inquiry and an equal-protection analysis. First, it found defendant's challenge to § 2L1.2(b)(2) to be foreclosed by binding precedent in United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992), which held that the pre-2016 version of § 2L1.2(b)(2) echoed § 1326(b)'s enhanced penalties for illegally entering the United States after being deported following a qualifying conviction, and did not violate noncitizens' equal-protection rights. Second, the Court reasoned that §§ 2L1.2(b)(2) and (b)(3) does not apply to all noncitizens, but only to those noncitizens who both have illegally reentered the United States and have been convicted of other crimes, which is important because doing so comports with Congress' determination that illegally entering 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. As such, the challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b). Additionally, Congress entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and punishes culpability and risk of recidivism--the interests the Sentencing Commission cited in issuing §§ 2L1.2(b)(2) and (b)(3). Finally, the Court found §§ 2L1.2(b)(2) and (b)(3) to be rationally related to the Commission's stated interests in issuing them.
The Court also disagreed with defendant's contention that by treating noncitizens differently from citizens, § 2L1.2 violated Congress' directive that sentencing be neutral as to national origin per 28 U.S.C. § 994(d). The Court joined other circuits in recognizing that alienage--not being a citizen of the United States--differs from national origin, i.e. the particular country in which one was born.
Finally, the Court found defendant's 37-month sentence to be substantively reasonable. The Court rejected defendant's double-counting arguments.
Judge Martin concurred in part and dissented in part. She agreed that the Court was bound by Adeleke to reject defendant's equal-protection challenge to § 2L1.2(b)(2). But, she did not believe that § 2L1.2(b)(3) passed constitutional muster.
