United States v. Luis David Huerta-Carranza

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12038
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS DAVID HUERTA-CARRANZA,
a.k.a. David Huerta,
a.k.a. Luis David Huerta,
Defendant-Appellant.
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2 Opinion of the Court 20-12038
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00597-RAL-AAS-1
____________________
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Luis Huerta-Carranza, a native and citizen of Mexico,
appeals from his conviction and sentence for being found illegally
in the United States after being convicted of a felony and previously
deported, in violation of 8 U.S.C. § 1326(a) and (b). He argues that
the district court erred in denying his motion to dismiss the
indictment because the immigration judge (“IJ”) lacked jurisdiction
in his original removal proceeding based on a defective notice to
appear (“NTA”), under Pereira v. Sessions, 138 S. Ct. 2105 (2018),
and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). He also argues
that U.S.S.G. § 2L1.2(b)(1)(A) and (3)(C) are unconstitutional and
violate the Fifth Amendment’s due process and equal protection
clauses. However, he concedes that our precedent forecloses both
of his claims, and he seeks to simply preserve them for further
review. Accordingly, we affirm.
I. Background
Huerta-Carranza entered the United States illegally from
Mexico in the 1990s. In 2001, authorities served Huerta-Carranza
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20-12038 Opinion of the Court 3
with a NTA charging him as removable for being present in the
United States without being admitted or paroled. The NTA
indicated that he should appear before an IJ at a date and time to
be determined. A subsequent notice provided him with the date,
place, and time of his removal hearing. The IJ subsequently
ordered him removed to Mexico, and he was removed in June
2001. At some point thereafter he reentered the United States
illegally and was arrested several times for various offenses
between 2004 and 2013. In 2013, he was charged and convicted of
illegal reentry and again removed from the United States in January
2014. He reentered again and was once again charged and
convicted of illegal reentry and after serving his sentence was again
removed to Mexico in 2017. Later, in July 2019, he again illegally
entered, his prior removal order was reinstated, and he was
removed that same month. Later in 2019, he reentered again and
was charged in the present case with illegal reentry after having
sustained a felony conviction and being removed.
Huerta-Carranza filed a motion to dismiss the indictment,
arguing that the IJ lacked jurisdiction over his original 2001
removal proceedings because his NTA was defective under
Pereira, in which the Supreme Court held that a notice to appear
that does not specify the time and place of the initial removal
proceeding does not qualify as a “notice to appear under [8 U.S.C.]
1229(a)” and therefore does not trigger the stop-time rule for
purposes of cancellation of removal. 138 S. Ct. at 2110, 2115.
However, he conceded that in Perez-Sanchez v. U.S. Att’y Gen.,
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4 Opinion of the Court 20-12038
935 F.3d 1148, 1154–56 (11th Cir. 2019), we held that the failure to
include the date, time, and place of an alien’s removal hearing in a
NTA did not deprive the IJ of jurisdiction over the proceedings.
The district court entered an endorsed order denying the motion
to dismiss, citing Perez-Sanchez.
Huerta-Carranza proceeded to a bench trial based on
stipulated facts and was found guilty as charged. He renewed his
motion to dismiss during the bench trial, and it was denied.
His presentence investigation report (“PSI”) indicated that
he received a four-level guidelines increase to the base offense level
under U.S.S.G. § 2L1.2(b)(1)(A) because he committed the instant
offense after being convicted of another illegal reentry offense.1
He also received a six-level increase under U.S.S.G. § 2L1.2(b)(3)(C)
because after being deported he was convicted of a felony offense
(other than illegal reentry) for which the sentence imposed
exceeded one year and one month.2 His total adjusted offense level
1
Section 2L1.2(b)(1)(A) provides that “[i]f the defendant committed the instant
offense after sustaining—(A) a conviction for a felony that is an illegal reentry
offense, increase by 4 levels.” U.S.S.G. § 2L1.2(b)(1)(A).
2
Section 2L1.2(b)(3)(C) provides that “[i]f, after the defendant was ordered
deported or ordered removed from the United States for the first time, the
defendant engaged in criminal conduct that, at any time, resulted in . . . a
conviction for a felony offense (other than an illegal reentry offense), for which
the sentence imposed exceeded one year and one month, increase by 6 levels.”
U.S.S.G. § 2L1.2(b)(3)(C). Huerta-Carranza’s PSI indicated that he was
convicted in 2005 of five felony counts related to forgery. He was sentenced
to 180 days in jail followed by 2 years’ probation, but his probation was later
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20-12038 Opinion of the Court 5
of 15 and his criminal history category of V resulted in a guidelines
range of 37 to 46 months’ imprisonment. He objected to the
offense-level enhancements under U.S.S.G. § 2L1.2(b), arguing that
the guideline was unconstitutional because it resulted in double
counting of his criminal history due to his status as an alien and
violated his right to equal protection and due process of the law.
The district court overruled his objection at sentencing as
foreclosed by binding precedent. The district court sentenced him
to 46 months’ imprisonment. This appeal followed.
II. Discussion
Huerta-Carranza is correct that both of his claims are
squarely foreclosed by binding precedent. Under the prior-panel-
precedent rule, “a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting en
banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
First, we have rejected the argument that, under Pereira, the
IJ lacks jurisdiction over removal proceedings because the NTA
was defective. Perez-Sanchez, 935 F.3d at 1154–55. The Supreme
Court’s subsequent decision in Niz-Chavez 3 that 8 U.S.C.
§ 1229b(d)(1) and § 1229(a)(1) unambiguously require that the
revoked and he was sentenced to 9 months in jail, which when combined with
his initial term of imprisonment totaled more than a year and a month.
3
After Huerta-Carranza filed his notice of appeal, the Supreme Court issued
its decision in Niz-Chavez.
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government provide a single NTA containing all of the information
required to be in an NTA in order to trigger the stop-time rule for
cancellation of removal was not a jurisdictional ruling and did not
undermine our holding in Perez-Sanchez. 141 S. Ct. at 1479–86.
And we have continued to rely on Perez-Sanchez’s holding that a
defective NTA does not create a jurisdictional issue post-Niz-
Chavez. See Farah v. U.S. Att’y Gen., 12 F.4th 1312, 1322 (11th Cir.
2021) (holding that “the immigration court retains jurisdiction over
an alien’s removal proceedings even if the alien’s notice to appear
does not contain the time or place of the proceedings”).
Accordingly, we conclude that the district court did not err in
denying Huerta-Carranza’s motion to dismiss the indictment.
Second, we have held that U.S.S.G. § 2L1.2(b) does not
violate the Fifth Amendment’s guarantees of due process and equal
protection. See United States v. Osorto, 995 F.3d 801, 821–22 (11th
Cir.), cert. denied, 142 S. Ct. 470 (2021) (holding that U.S.S.G.
§ 2L1.2(b)(2) and (3) satisfied procedural due process and do not
violate equal protection); United States v. Adeleke, 968 F.2d 1159,
1160–61 (11th Cir. 1992) (holding that previous version of U.S.S.G.
§ 2L1.2(b)(1) does not violate equal protection and does not
constitute impermissible double counting of criminal history).
Accordingly, the district court did not err in denying Huerta-
Carranza’s constitutional challenge to U.S.S.G. § 2L1.2(b).
AFFIRMED.