USA v. Juan Melvin Dupre-Pena

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12467
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MELVIN DUPRE-PENA,
a.k.a. Juan M. Pena,
a.k.a. Wilberto Class,
a.k.a. Adriano Pena Pena,
Defendant-Appellant.
____________________
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2 Opinion of the Court 22-12467
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20563-DPG-1
____________________
Before J ILL PRYOR , ANDERSON, and J ULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant Juan Dupre-Pena appeals his 24-month sentence
for illegal reentry into the United States after removal in violation
of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Defendant claims the
sentencing judge unlawfully applied a 10-level increase pursuant to
USSG § 2L1.2(b)(3), a provision he argues is unconstitutional. As
explained below, Defendant’s argument is foreclosed by binding
circuit precedent. Accordingly, we affirm the sentence.
BACKGROUND
Defendant Juan Dupre-Pena, a citizen and native of the Do-
minican Republic, illegally entered the United States more than 30
years ago at an unknown location. He was removed from the
United States to the Dominican Republic in 1991 after completing
a 2-year sentence in Massachusetts for unlawful distribution of co-
caine. A few years later, Defendant used an alias to reenter the
United States with an immigrant visa. He was removed from the
United States a second time in 2004 after completing another sen-
tence in Massachusetts for cocaine distribution and trafficking.
Within a few months of his second removal, Defendant again reen-
tered the United States using an alias. In 2016, he was removed
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22-12467 Opinion of the Court 3
from the United States to the Dominican Republic a third time after
serving a 5-year sentence for distributing cocaine.
Defendant was arrested in Miami in May 2019 for cocaine
trafficking, having once again reentered the United States after be-
ing removed multiple times. Following his arrest, Defendant was
indicted and pled guilty to one count of illegal reentry after re-
moval in violation of 8 U.S.C. § 1326(a) and (b)(2). The PSR as-
signed Defendant a base offense level of 8 under USSG § 2L1.2(a).
Citing Defendant’s most recent conviction for distributing cocaine,
which occurred after his first removal from the United States and
resulted in a sentence of 5 years or more, the PSR recommended a
10-level increase pursuant to USSG § 2L1.2(b)(3)(A). Factoring in
a 2-level deduction for acceptance of responsibility, the PSR set De-
fendant’s total offense at 15, yielding a recommended guidelines
range of 24 to 30 months.
At sentencing, Defendant agreed with the calculation in the
PSR, but he objected to the 10-level increase applied under USSG
§ 2L1.2(b)(3)(A) on the ground that the provision “double counts”
a defendant’s criminal history category and offense level. Defense
counsel clarified during the sentencing hearing that this argument
was foreclosed by Eleventh Circuit precedent and that he had filed
the objection only to preserve it for the record in case the issue was
revisited by this Court. The Government requested a sentence at
the high end of the guidelines range, noting that Defendant had
been deported three times since the early 1990s, only to return to
commit more crimes in the United States. The district court
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4 Opinion of the Court 22-12467
sentenced Defendant to 24 months, the low end of the recom-
mended guidelines range, to be followed by 3 years of supervised
release.
Defendant appeals, reasserting his argument that USSG
§ 2L1.2(b)(3) is unconstitutional. Defendant admits that he is sub-
ject to the 10-level increase provided for in § 2L1.2(b)(3)(A) based
on his conviction of a felony offense in 2011, after his unauthorized
reentry into the United States, that resulted in a sentence of 5 years.
But he argues that the increase violated his equal protection and
due process rights because it resulted in a double counting of the
2011 conviction, for which Defendant also received 3 criminal his-
tory points under the guidelines.
DISCUSSION
As Defendant acknowledged at sentencing and concedes on
appeal, his argument that USSG § 2L1.2(b)(3) is unconstitutional
because it double counts his 2011 felony conviction for purposes of
his criminal history points and 10-level enhancement is foreclosed
by binding Eleventh Circuit precedent.
See United States v.
Osorto, 995 F.3d 801, 823–24 (11th Cir. 2021),
cert. denied, 142 S.
Ct. 470 (Nov. 8, 2021). In
Osorto, this Court expressly rejected that
very argument, holding that USSG § 2L1.2(b)(3) does “not violate
the Constitution’s guarantee of equal protection” nor does it
“cause unlawful double-counting in violation of due process or oth-
erwise.”
Id.
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22-12467 Opinion of the Court 5
Osorto is materially indistinguishable from this case, and
thus controlling here. This Court has consistently reaffirmed its
ruling in
Osorto as to the constitutionality of USSG § 2L1.2(b)(3)
and the Supreme Court has declined to address the issue.
See
United States v. Huerta-Carranza, 2022 WL 1640701, at *3 (11th
Cir. May 24, 2022) (reaffirming
Osorto),
cert. denied, 143 S. Ct. 611
(Jan. 9, 2023);
United States v. Bonilla-Diaz, 2023 WL 111054, at *3
(11th Cir. Jan. 5, 2023) (same). Accordingly, we are bound by the
prior panel precedent rule to reject the argument asserted by De-
fendant on appeal and to affirm his sentence.
See United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“Under [the prior
panel precedent] rule, a prior panel’s holding is binding on all sub-
sequent panels unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court or by this court sit-
ting
en banc.”).
CONCLUSION
For the reasons discussed above, we AFFIRM Defendant’s
sentence.
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