United States v. Mario Hernandez-Galarza

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 17, 2021
• Docket: 20-13912
• Status: Unpublished

Opinion

USCA11 Case: 20-13912 Date Filed: 08/17/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13912 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-cr-00257-RAL-CPT-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO HERNANDEZ-GALARZA, a.k.a. Mario Galarza-Hernandez,

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(August 17, 2021)

Before JORDAN, NEWSOM and GRANT, Circuit Judges.

PER CURIAM:

Mario Hernandez-Galarza, a counseled federal prisoner, appeals his 48-

month sentence following his conviction for one count of illegal reentry to the

United States after having previously been deported. The government, in turn, USCA11 Case: 20-13912 Date Filed: 08/17/2021 Page: 2 of 5

moves for summary affirmance of the district court’s judgment or, alternatively,

for a stay of the briefing schedule, arguing that Hernandez-Galarza’s arguments are

foreclosed by our binding precedent.

Summary disposition is appropriate, in part, where “the position of one of

the parties is clearly right as a matter of law so that there can be no substantial

question as to the outcome of the case, or where, as is more frequently the case, the

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th

Cir. 1969).

We normally review constitutional challenges to the Sentencing Guidelines

de novo. See United States v. Osorto, 995 F.3d 801, 810 (11th Cir. 2021).

However, we review for plain error when a defendant fails to object to an alleged

constitutional error before the district court. See United States v. Raad, 406 F.3d

1322, 1323 (11th Cir. 2005). Further, under the prior panel precedent rule, we are

bound to follow a prior panel’s holding unless and until it is overruled or

undermined to the point of abrogation by an opinion of the Supreme Court or of

this Court sitting en banc. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.

2008).

Section 1326 of Title 8 criminalizes the reentry of removed aliens. 8 U.S.C.

§ 1326. As relevant here, it provides for criminal penalties for an alien who

2 USCA11 Case: 20-13912 Date Filed: 08/17/2021 Page: 3 of 5

reenters the United States after he was removed for being convicted of an

aggravated felony. Id. § 1326(b)(2).

Pursuant to the 2018 Guidelines, an offense involving unlawfully entering or

remaining in the United States⸺including a conviction under 8 U.S.C. § 1326⸺is

assigned a base offense level of 8. U.S.S.G. § 2L1.2(a). Further, a defendant’s

offense level is increased by six if he was convicted of a felony offense, for which

the sentence imposed exceeded one year and one month, before he was ordered

deported or removed. Id. § 2L1.2(b)(2)(C). The guidelines also provide for an

eight-level enhancement if, after the defendant was ordered deported or removed,

he was convicted of a felony offense for which the sentence imposed was two

years or more. Id. § 2L1.2(b)(3)(B).

Equal protection of rights under federal law is governed by the Fifth

Amendment. Osorto, 995 F.3d at 810. Specifically, the Fifth Amendment's

guarantee of due process embodies within it the concept of equal justice under the

law. Id.

In 1992, we rejected an equal protection challenge to the version of U.S.S.G.

§ 2L1.2(b)(2) in effect at the time, and we held that application of the same did not

violate noncitizens’ due process rights. See United States v. Adeleke, 968 F.2d

1159, 1160-61 (11th Cir. 1992). We also explained that § 2L1.2(b)(2) and the

Chapter Four criminal-history guidelines did not impermissibly “double-count”

3 USCA11 Case: 20-13912 Date Filed: 08/17/2021 Page: 4 of 5

prior convictions because the Sentencing Commission “clearly intended” this result

and because different policies—deterrence and recidivism, respectively—

motivated each provision. Id. at 1161.

Importantly, the version of the guidelines in effect when Adeleke was

sentenced included no offense enhancement for an 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. See Osorto, 995 F.3d at 808. To

more equitably reflect culpability and risk of recidivism embodied in § 1326(b),

however, the Sentencing Commission amended § 2L1.2(b) in 2016 to decrease the

maximum enhancement, in illegal reentry cases, for a pre-deportation conviction to

10 levels (§ 2L1.2(b)(2)), while at the same time adding a new enhancement of up

to 10 levels for a post-first-deportation conviction incurred before the immediate

illegal-reentry offense (§ 2L1.2(b)(3)). Id.

In Osorto, decided in April 2021 after Hernandez-Galarza’s sentencing and

after he filed his initial brief, an alien who was convicted of illegal reentry had

committed other offenses both before his original deportation and after it, but

before his current illegal-reentry offense, and, as a result, he received offense-level

increases under both subsections 2L1.2(b)(2) and (3). Id. At sentencing, he

challenged both subsections as violations of, among other things, his equal-

protection rights. The district court overruled his objections, however, and

4 USCA11 Case: 20-13912 Date Filed: 08/17/2021 Page: 5 of 5

enhanced his offense level under U.S.S.G. § 2L1.2(b)(2) because he had previously

been convicted of a single qualifying crime (other than illegal reentry) before he

was deported at an earlier time. Id. at 809. He appealed, challenging the preceding

on equal protection grounds. Id. We affirmed, however, holding that, in light of

Adeleke, “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, d[id] not violate the Constitution’s guarantee of equal

protection.” Osorto, 995 F.3d at 823-24. We also held that the enhancements

under § 2L1.2(b)(2) and (3) did not “cause unlawful double-counting in violation

of due process or otherwise.” Id. at 824.

Here, as Hernandez-Galarza acknowledges, we are faced with the same

question we were in Osorto. Thus, his claim that the enhancements pursuant to

§ 2L1.2 violated his right to equal protection under the Constitution is foreclosed

by Osorto. See Osorto, 995 F.3d at 823-24.

Therefore, because the government’s position is correct as a matter of law, we

GRANT the government’s motion for summary affirmance. See Groendyke

Transp., Inc., 406 F.2d at 1162. Accordingly, we DENY the accompanying motion

to stay the briefing schedule as moot.