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Sentencing enhancements for prior conviction upheld in two illegal reentry decisions

In U.S. v Acuna-Reyna, the 11th Circuit held an uncounseled misdemeanor conviction resulting in probation and a fine would still be counted for criminal history points under the guidelines. The defendant was convicted of illegal reentry after deportation and at his sentencing he was assessed a criminal history point for a prior uncounseled misdemeanor conviction for driving under the influence. The defendant pled guilty to driving under the influence of alcohol, a misdemeanor, and was sentenced to 12 months probation and a fine of $940. Defendant argued that the uncounseled conviction was presumptively void and relied on Alabama v. Shelton to support his argument that the mere threat of incarceration in a future proceeding to revoke his probation entitled him to counsel.

In rejecting this argument, the 11th Circuit held that the prior conviction would still count because the court had imposed a fine. Even if the court disregarded the sentence of probation, the remaining portion of the sentence of the imposition of a fine was still a constitutionally valid and counted as a criminal history point.

In U.S. v Romo-Villalobos, the 11th Circuit held that a prior conviction for resisting arrest with violence will support a 16 level enhancement for reentry after deportation. The defendant appealed his 16 level enhancement for a prior Florida conviction for resisting an officer with violence. The defendant argued it was not a crime of violence because under Florida law, the element of violence can be satisfied by de minimus force. In considering whether a prior conviction is a qualifying offense for sentencing enhancement purposes, the 11th Circuit applies the categorical approach – the fact of the conviction and the statutory definition of the prior offense.

The Defendant also argued his sentence was unreasonable because the district court failed to grant a variance based on sentence disparities caused by the Middle District of Florida’s lack of a fast track program. The 11th Circuit reaffirmed its prior decision that a district court is not required to depart from the applicable guideline range based on the availability of a fast track programs in only some districts. Furthermore, Romo-Villalobos would not qualify for the fast-track program in any event because of his prior conviction for a crime of violence and he plead guilty without a plea agreement.

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