Whether U.S.S.G. § 2L1.2(b)(3) is unconstitutional

QUESTION PRESENTED In 2016, the United States Sentencing Commission promulgated United States Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(3), which applies exclusively to noncitizens and increases the range of imprisonment based on a prior conviction incurred after a noncitizen’s first removal from the United States. The same conviction already increases the noncitizen’s range of imprisonment by enhancing his criminal history score under U.S.S.G. § 4A1.1. Around 3,000 noncitizens every year face longer terms of imprisonment because of the compound use of their prior convictions under § 2L1.2(b)(3). In Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), this Court limited the extent to which federal agencies receive deferential rational basis review in cases involving discrimination against noncitizens. On grounds, this Court invalidated a policy promulgated by a federal agency that treated noncitizens differently from citizens and deprived them of liberty. But in a fractured decision applying Hampton, the Eleventh Circuit held in United States v. Osorto, 995 F.3d 801 (11th Cir. 2021), cert. denied sub nom. Osorto, Juan C. v. United States, 2021 WL 5167891 (U.S. Nov. 8, 2021) (No. 21-5747), that the Sentencing Commission’s promulgation of § 2L1.2(b)(3) satisfied procedural due process and did not violate the equal protection guarantee of the Fifth Amendment to the Constitution. Mr. Hernandez-Galarza and every other noncitizen facing sentencing under § 2L1.2(b)(3) in the Eleventh Circuit is now bound by Osorto. The question presented is: whether U.S.S.G. § 2L1.2(b)(3) is unconstitutional. i