United States v. Osorto, No. 19-11408 (11th Cir. 2021)
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The Sentencing Guidelines' enhancements under subsections 2L1.2(b)(2) and (3), for criminal convictions received before and after the defendant's previous deportation or removal, do not violate the Constitution's guarantee of equal protection. Nor do they cause unlawful double-counting in violation of due process or otherwise.
Defendant was convicted of illegal reentry after the 2016 United States Sentencing 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 USSG 2L1.2(b)(2) and (3).
The Eleventh Circuit concluded that defendant's challenge to section 2L1.2(b)(2) is foreclosed by the court's binding precedent in United States v. Adeleke, 968 F.2d 1159, 1160–61 (11th Cir. 1992). The court explained that 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. Furthermore, this is important because, through section 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 court further explained that the challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of section 1326(b). The court also concluded that 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, the court concluded that subsections 2L1.2(b)(2) and (3) are rationally related to the Commission's stated interests in issuing them. Therefore, the court upheld the guidelines at issue and affirmed defendant's sentence.
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