          Case: 17-14814   Date Filed: 04/20/2018   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14814
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 4:17-cr-10009-JLK-4



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

ONEIL ANTHONY HARRIS,

                                                        Defendant-Appellant.

                      ________________________

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

                             (April 20, 2018)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Oneil Harris appeals his 24-month sentence, imposed after he

pled guilty to illegal reentry after deportation. On appeal, he argues that the

district court’s upward variance from the guideline range constituted an abuse of

discretion. After careful review, we affirm.

I.    BACKGROUND

      In March 2017, United States Customs and Border Protection officers

located a disabled vessel approximately two nautical miles from Tavernier,

Florida. The officers boarded the vessel and discovered 11 passengers below deck,

none of whom had legal status in the United States or permission to enter the

United States. Defendant, a citizen and national of Jamaica, was one of the

passengers below deck. A subsequent investigation revealed that Defendant was

ordered removed from the United States in December 2012. However, he was not

physically removed from the United States until September 2016, following a

conviction and imprisonment sentence in Illinois for possession with intent to

deliver cannabis.

      Defendant was charged with illegal reentry after having been previously

deported for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). He

later pled guilty without the benefit of a plea agreement.

      Applying the 2016 Guidelines, the Presentence Investigation Report

assigned Defendant a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a).


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Defendant received a two-level reduction for acceptance of responsibility, resulting

in a total offense level of 6. He received three criminal history points for a June

2013 conviction in Illinois for possession with intent to deliver cannabis, for which

he received an eight-year sentence. The PSR noted that Defendant was arrested in

2002 but failed to appear and was not convicted until 2013. Defendant also

received two additional criminal history points because the present offense was

committed while he was on parole for the 2013 drug offense, resulting in a

criminal history category of III. Based on a total offense level of 6 and a criminal

history category of III, Defendant’s guideline range was 2 to 8 months’

imprisonment.

      Prior to the sentencing hearing, the Government filed a motion for an

upward variance. Specifically, the Government argued that the 2016 Guidelines

provide for a 10-level enhancement under U.S.S.G. 2L1.2(b)(2)(A) if a defendant

sustained a conviction for a felony offense and received a sentence of five years or

more before the defendant was ordered removed from the United States for the first

time. Because Defendant was not convicted of the felony drug offense until after

he was ordered removed in 2012, the Government acknowledged that the

enhancement did not apply. The Government nevertheless argued that the district

court should vary upward as though the enhancement did apply because




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Defendant’s conduct warranted an increased sentence pursuant to 8 U.S.C.

§ 1326(b)(2) and the 18 U.S.C. § 3553(a) factors.

      At the sentencing hearing, the Government presented testimony from United

States Customs and Border Protection Officer Narcisco Fernandez. Officer

Fernandez testified about Defendant’s June 2013 drug conviction in Illinois and his

immigration history. Specifically, Officer Fernandez explained that an expedited

order of removal was entered against Defendant in December 2012 after he was

apprehended while trying to enter the United States in Dania, Florida. Defendant

was not immediately removed at that time because he was extradited to Illinois to

face the drug charges stemming from his arrest in 2002. Following Officer

Fernandez’s testimony, the district court calculated a guideline range of 2 to 8

months’ imprisonment.

      The Government reiterated that § 2L1.2(b)(2)(A)—which provides for a 10-

level enhancement if the defendant was convicted of a felony offense and received

a sentence of five years or more before he was ordered removed from the United

States—conflicts with § 1326(b)(2), which requires only that a defendant is

physically removed from the United States subsequent to a conviction for an

aggravated felony. The Government asserted that an upward variance was

warranted to punish Defendant for his actions, which involved committing a

serious crime, being deported, and then coming back to the United States.


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Although the Government clarified that it was not asking for the court to apply the

enhancement, it asserted that if the enhancement had applied, Defendant’s

guideline range would have been 24 to 30 months’ imprisonment.

      Defendant asserted that the court should deny the Government’s motion for

an upward variance because he did not qualify for the 10-level enhancement under

the 2016 version of the Guidelines due to the fact that he was ordered removed

before he was convicted of the felony drug offense.

      The court granted the Government’s motion for an upward variance,

concluding that Congress clearly intended to deter aliens who have a prior felony

conviction from reentering the United States. The court stated that it would

exercise its discretion to vary upward and sentence Defendant within the range that

would have been applicable if the 10-level enhancement under the 2016 Guidelines

had applied: 24 to 30 months’ imprisonment. After considering the 18 U.S.C.

§ 3553(a) factors, the court sentenced Defendant to 24 months’ imprisonment.

Defendant objected to the procedural and substantive reasonableness of the upward

variance and this appeal followed.

II.   DISCUSSION

      Using a two-step process, we review the reasonableness of a sentence

imposed by the district court for an abuse of discretion. United States v. Cubero,

754 F.3d 888, 892 (11th Cir. 2014). We first look to whether the district court


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committed any significant procedural error, such as miscalculating the advisory

guideline range, treating the Sentencing Guidelines as mandatory, failing to

consider the § 3553(a) factors, 1 selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence. Id. Then we examine

whether the sentence is substantively reasonable in light of the totality of the

circumstances. Id. The party challenging the sentence bears the burden of

showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th

Cir. 2008).

       “A district court making an upward variance must have a justification

compelling enough to support the degree of the variance and complete enough to

allow meaningful appellate review, and this Court will vacate such sentence only if

left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the § 3553(a) factors by arriving at a sentence

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014) (brackets and quotations

omitted). We “may not presume that a sentence outside the guidelines is

1
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).

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unreasonable and must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” United States v.

Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (quotations omitted).

      Defendant argues that the district court abused its discretion by imposing a

24-month sentence, which reflected a 16-month upward variance from the top of

the guideline range of 2 to 8 months’ imprisonment. We disagree. Although the

upward variance was significant, it is still well below the 20-year statutory

maximum sentence. See 8 U.S.C. § 1326(b)(2); see also United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008) (explaining that a sentence well below the

statutory maximum is an indicator of reasonableness).

      Moreover, when imposing the 24-month sentence, the district court

emphasized Congress’s intent in deterring individuals like Defendant, who reenter

the United States after being convicted of a serious crime. See United States v.

Zelaya, 293 F.3d 1294, 1298 (11th Cir. 2002) (“Section 1326(b)(2) mandates a

harsher punishment for an alien who, having been deported subsequent to

committing an aggravated felony, illegally re-enters the United States.” (quotations

omitted)). Indeed, Defendant was removed in September 2016 following the

completion of his eight-year sentence in Illinois for possession with intent to

deliver cannabis. Less than one year later, Defendant illegally reentered the United

States in March 2017. The district court considered Defendant’s argument that his


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motivation for returning to the United States was to see his wife and children but

nevertheless concluded that an upward variance was justified by the § 3553(a)

factors, including Defendant’s history and characteristics, the need for deterrence,

and the need to promote respect for the law.

      Defendant asserts that the district court abused its discretion by deciding to

vary upward based on an enhancement that does not apply to him. According to

Defendant, § 2L1.2(b) was amended in 2016 to expressly prevent the sentencing

enhancement from applying to defendants like him. The 2016 version of

§ 2L1.2(b) provides in relevant part for a 10-level enhancement if the defendant

sustained a conviction for a felony offense for which the sentence imposed was

more than five years “before the defendant was ordered deported or ordered

removed from the United States for the first time.” U.S.S.G. § 2L1.2(b)(2) (2016)

(emphasis added). It is undisputed that because Defendant’s June 2013 conviction

for possession with intent to deliver cannabis did not occur until after he was

issued an expedited order of removal in December 2012, he does not qualify for

the 10-level enhancement under § 2L1.2(b)(2)(A).

      And to be clear, the district court did not apply the 10-level enhancement

pursuant to § 2L1.2(b)(2)(A) in the present case. The court, however, did conclude

that the advisory guideline range of 2 to 8 months’ imprisonment was insufficient

to punish Defendant, an illegal alien who was deported and reentered the United


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States after being convicted of a serious crime. We cannot say that the district

court abused its discretion by concluding that Defendant’s conduct warranted a

sentence above the guideline range. See United States v. Tome, 611 F.3d 1371,

1379 (11th Cir. 2010) (explaining that a court is free to consider any information

relevant to a defendant’s background, character, and conduct when imposing an

upward variance).

      Notably, although Defendant was arrested on the Illinois drug offense in

2002, he was not convicted until 2013. Indeed, he absconded for nearly a decade

before he was apprehended by Customs and Border Protection officers while

attempting to illegally enter the United States in 2012. Thus, it was through his

own conduct that Defendant was able to delay the timing of his conviction. Had

Defendant not fled, he presumably would have been convicted on the Illinois drug

charge before the order of removal had issued. In other words, his criminal

conduct clearly occurred before issuance of that order. Then, following both a

drug conviction and his eventual removal in 2016, Defendant illegally reentered

the United States in March 2017.

      On these facts, the district court’s decision to impose an upward variance

comports with the purpose of the § 1326(b)(2), which is to provide more severe

punishment for the “illegal entry by a deportee who has earlier committed a serious

crime while in the United States.” Zelaya, 293 F.3d at 1298. Under these


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circumstances, we are not left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the factors in this case. See

Dougherty, 754 F.3d at 1362.

      To the extent Defendant argues that district court improperly justified the

upward variance with factors that were already contemplated by the Guidelines, his

argument is without merit. We have stated that “a district court can rely on factors

in imposing a variance that it had already considered in imposing an

enhancement.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).

      Accordingly, Defendant’s sentence is AFFIRMED.




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