United States v. Rexford Hosang ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-4319
UNITED STATES OF AMERICA
v.
REXFORD LENUAL HOSANG,
Appellant
(D.C. Crim. No. 09-cr-00281-001)
No. 09-4378
UNITED STATES OF AMERICA
v.
MANUEL LOPEZ-CORTEZ,
Appellant
(D.C. Crim. No. 09-cr-00509-001)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
June 30, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges
(Opinion Filed: July 2, 2010)
OPINION
BARRY, Circuit Judge
Appellants Rexford Lenual Hosang and Manuel Lopez-Cortez appeal their 46-
month sentences.1 We will affirm.
I.
Hosang
In 2003, after a state court drug conviction that led to a sentence of more than 13
months, Hosang was deported. In 2008, he illegally re-entered the United States to be
with his ailing wife. Thereafter, he was charged with and pled guilty to illegally re-
entering the United States subsequent to a conviction for the commission of an
aggravated felony, 8 U.S.C. § 1326(a) & (b). His Guidelines range was 46 to 57 months
imprisonment, and the District Court sentenced him to 46 months imprisonment.
Lopez-Cortez
In 1988, after being sentenced to one year imprisonment for attempted robbery and
attempted bail jumping, Lopez-Cortez was deported. He illegally re-entered the United
States. Like Hosang, he was charged with and pled guilty to illegally re-entering the
1
Although Hosang and Lopez-Cortez were not co-defendants, we granted the
government’s uncontested motion to consolidate these appeals.
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United States subsequent to a conviction for the commission of an aggravated felony, 8
U.S.C. § 1326(a) & (b). His Guidelines range was also 46 to 57 months imprisonment,
and he too was sentenced to 46 months imprisonment.
On appeal, appellants both argue: (1) that the District Court misapprehended its
authority to categorically vary from the illegal re-entry Guideline based solely on a policy
disagreement; and (2) that their Fifth and Sixth Amendment rights were violated when
their maximum sentence exposure was increased based on a prior conviction that was
neither admitted nor proven to a jury beyond a reasonable doubt. 2
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review the
sentences imposed for reasonableness and will not reverse absent an abuse of discretion.
See United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008).
Pursuant to U.S.S.G. § 2L1.2, a defendant convicted of unlawfully entering the
United States has a base offense level of 8. Where, as in Hosang’s circumstances, a
defendant was deported after “a conviction for a felony that is . . . a drug trafficking
offense for which the sentence imposed exceeded 13 months,” U.S.S.G. §
2L1.2(b)(1)(A)(i), and where, as in Lopez-Cortez’s circumstances, a defendant was
deported after “a conviction for a felony that is . . . a crime of violence,” U.S.S.G. §
2
Both appellants concede that Supreme Court precedent forecloses this argument. We
agree.
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2L1.2(b)(1)(A)(ii) & cmt. 1(B)(iii), 5, the offense level is increased by 16 levels.
Appellants argue that the District Court erred by misapprehending its authority to
vary from the application of § 2L1.2 based on the fact that the Guidelines range, when
applied to them, produced excessive sentences. We recently rejected this very argument
in United States v. Lopez-Reyes, 589 F.3d 667 (3d Cir. 2009). There, we held that a
district court is not required to reject a particular Guidelines range where the court does
not disagree with the Guideline at issue. Id. at 671. Moreover, a district court is also “not
required to engage in ‘independent analysis’ of the empirical justifications and
deliberative undertakings that led to a particular Guideline.” Id.
In separately sentencing both defendants on the same day, the District Court
provided both defendants with a full opportunity to extensively argue why § 2L1.2 was
unreasonable, both in general and as applied. In both cases, the Court noted that § 2L1.2
was a harsh enhancement, but also noted that it found instructive the fact that the
Sentencing Commission has not revisited § 2L1.2 despite commentary from courts and
others criticizing the Guideline. There was no abuse of discretion here. See Lopez-Reyes,
589 F.3d at 671.
III.
The judgments of sentence will be affirmed.
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