Second Circuit Reaffirms Permissibility of §2L1.2 “Double Counting” and Deferential Substantive-Reasonableness Review in Illegal-Reentry Sentencing

Introduction

In United States v. Garcia-Gonzalez, No. 24-2960-cr (2d Cir. Sept. 30, 2025) (summary order), a panel of the Court of Appeals for the Second Circuit (Judges Wesley, Bianco, and Robinson) affirmed a 21-month federal sentence for illegal reentry under 8 U.S.C. § 1326(a). The sentence, imposed by Judge Cathy Seibel in the Southern District of New York, was ordered to run consecutively to a three-year New York state sentence for attempted criminal sexual act in the first degree by forcible compulsion.

The appeal presented a single issue: whether the federal sentence was substantively unreasonable. The Second Circuit rejected the defendant’s arguments, emphasizing the district court’s careful consideration of 18 U.S.C. § 3553(a) and reaffirming two settled propositions in this circuit: (1) the highly deferential nature of substantive-reasonableness review, and (2) the permissibility of using a prior conviction to influence both the offense level and the criminal history score under U.S.S.G. § 2L1.2 in unlawful reentry cases—sometimes colloquially labeled “double counting.”

Although issued as a summary order without precedential effect, the decision offers a clear and practical restatement of these doctrines and reflects how they operate in cases involving repeated unlawful entries and significant criminal histories.

Summary of the Opinion

The Second Circuit affirmed the 21-month sentence, which was at the top of the advisory Guidelines range of 15–21 months. Applying the deferential abuse-of-discretion standard for substantive reasonableness, the court concluded the sentence was not “shockingly high” nor otherwise unsupportable as a matter of law.

The panel highlighted the district court’s detailed justification:

The defendant had approximately 20 illegal reentries, with two prior federal convictions for the same offense—“a jaw-dropping number of times” making this “among the more serious versions of this offense that one sees” (App’x 67–68).
He had a “terrible record,” including convictions for assault and attempted criminal sexual act in the first degree by forcible compulsion (App’x 68–69).
Deterrence was “a big factor” given the court’s strong concern that he would reoffend; the judge noted she had “rarely … seen a defendant as to whom [she] was this sure was going to commit the same crime again” (App’x 69, 71).
The court also considered the statutory need to avoid unwarranted sentencing disparities and the other § 3553(a) factors.

The panel rejected two appellate arguments:

Double counting under § 2L1.2: The defendant argued his 2023 state conviction was impermissibly used to raise both his offense level and criminal history. The panel held that (i) the argument was not raised below, so the district court did not err by failing to address it explicitly; and (ii) in any event, it is well-established in the Second Circuit that such dual use is permissible in unlawful reentry cases (citing United States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006)).
Mitigating circumstances: The defendant emphasized his difficult upbringing, family ties in the United States, and fear of violence in Mexico. The panel noted the district court expressly considered these factors but reasonably found they were outweighed by other § 3553(a) considerations, and reiterated that appellate courts do not reweigh factors when the ultimate sentence is reasonable (citing United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006)).

Analysis

Precedents Cited

United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc): Cavera anchors the abuse-of-discretion standard for review of substantive reasonableness and emphasizes that appellate courts should not substitute their judgment for the district court’s within the “range of permissible decisions.” The panel also drew from Cavera’s exhortation that a court’s reasons must be able to “bear the weight assigned [them] under the totality of [the] circumstances” (id. at 191).
United States v. Muzio, 966 F.3d 61 (2d Cir. 2020): Muzio popularized the Second Circuit’s “shockingly high, shockingly low, or otherwise unsupportable” formulation for substantive unreasonableness. The panel applied that standard and found no such defect here.
United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007): Fernandez provides two recurrent guideposts: (i) while there is no per se presumption that a within-Guidelines sentence is reasonable, such sentences typically fall within the broad range of reasonable outcomes; and (ii) where the sentence is reasonable and no procedural error occurred, appellate courts will not second-guess the weight assigned to particular § 3553(a) factors. The panel invoked both points.
Rita v. United States, 551 U.S. 338 (2007): Rita permits an appellate presumption of reasonableness for within-Guidelines sentences (without requiring it), which affected some earlier Second Circuit formulations. Here, the panel cited Fernandez as “abrogated on other grounds by Rita,” confirming the continuing vitality of Fernandez’s other holdings the panel relied on.
United States v. Pereira, 465 F.3d 515 (2d Cir. 2006): Pereira is the Second Circuit’s leading authority that a prior conviction may be used both to increase the offense level and to compute criminal history in illegal reentry cases. The panel quoted Pereira to reject the “double counting” challenge.
United States v. Rojas, 361 F. App’x 233 (2d Cir. 2010) (summary order): Rojas underscores that district courts are not required to articulate policy disagreements with the Guidelines or to mention every relevant consideration; their silence on a particular policy critique does not imply non-consideration. The panel used Rojas to reject faulting the district court for not expressly addressing a policy-based critique that was never raised.

Legal Reasoning

The panel’s analysis proceeded in two steps that mirror the defendant’s arguments.

Overall substantive reasonableness of a high-end Guidelines sentence: The district court set the sentence at 21 months, the top of the advisory 15–21 month range. Although there is no presumption of reasonableness for within-range sentences in the Second Circuit, the court reiterated that such sentences typically fall “comfortably” within the spectrum of reasonable outcomes. The district court’s rationale mapped cleanly onto § 3553(a): severity of the offense (approximately 20 reentries), specific and general deterrence (a strong prediction of recidivism), protection of the public (violent and sexual-offense history), and avoidance of unwarranted disparities. In the panel’s view, these considerations were weighty, carefully explained, and sufficient to support the high-end sentence.
Rejection of the “double counting” challenge to U.S.S.G. § 2L1.2: The defendant claimed the Guidelines impermissibly counted his 2023 state conviction twice—once to raise the offense level and again to increase criminal history. The panel disposed of this in two ways:
- Preservation: The issue was not raised below, so the district court did not abuse its discretion by failing to address it explicitly. District judges are not obliged to wade into unrequested policy debates with the Guidelines.
- Merits: Even if reached, the argument fails under controlling Second Circuit law: Pereira confirms that § 2L1.2’s structure allows prior convictions to influence both components. The panel added that the defendant did not show that this feature yielded a sentence that was substantively unreasonable in his particular circumstances.

The panel also addressed mitigation. While the district court took account of the defendant’s difficult upbringing, family responsibilities, and fears of violence in Mexico, it ultimately concluded those considerations were outweighed by the need for deterrence and protection of the public in light of the defendant’s extensive reentry history and serious prior convictions. Under Fernandez, the appellate court does not reweigh those factors when the sentence is otherwise reasonable and free from procedural error.

Impact

Although non-precedential, the order communicates several practical points likely to influence sentencing advocacy and outcomes in the Second Circuit:

High-end within-Guidelines sentences are hard to disturb on appeal, particularly where a district court articulates concrete recidivism and public-safety concerns. The “shockingly high” threshold remains a formidable barrier to reversal.
§ 2L1.2 “double counting” challenges remain non-starters on appeal in this circuit, absent something extraordinary. If a defendant seeks relief from that feature, the proper vehicle is a request for a policy-based variance at sentencing, not a claim of error in applying the Guideline.
Preservation matters: Policy disagreements with the Guidelines should be made explicit at sentencing. District courts are not required to initiate or resolve policy debates sua sponte, and appellate courts will not fault them for silence when the argument was never raised.
Mitigation grounded in family ties or fear of violence may be credited but outweighed by extensive immigration recidivism and serious criminal histories. The opinion illustrates how courts may give substantial weight to deterrence and public protection under § 3553(a)(2)(B)-(C) in repeat § 1326 cases.
Consecutiveness to state sentences stands absent challenge: While the panel did not analyze 18 U.S.C. § 3584 or U.S.S.G. § 5G1.3, the case underscores that federal courts may impose sentences consecutive to state terms, and that such structuring will typically survive appellate review if not independently contested.
Language matters but deference holds: The district court’s strong statements about the likelihood of reoffense (“rarely … this sure”) reflect a robust reliance on the defendant’s history and the judge’s experience. The panel’s affirmance suggests appellate tolerance for such predictive judgments when supported by the record.

Complex Concepts Simplified

Substantive vs. procedural reasonableness: A sentence is procedurally reasonable if the court correctly calculates the Guidelines range, considers the § 3553(a) factors, and adequately explains its decision. Substantive reasonableness asks whether the sentence length itself is reasonable—so extreme that it would “damage the administration of justice.” This appeal challenged only substantive reasonableness.
Abuse-of-discretion standard: Appellate courts give district judges wide latitude. If the sentence is within the generous “range of permissible decisions,” the appellate court will not substitute its judgment for the sentencing judge’s.
Guidelines offense level vs. criminal history: In the Guidelines framework, the offense level measures the seriousness of the current crime (sometimes including aspects of prior convictions), while criminal history scores assess the defendant’s past record and risk of recidivism. In unlawful reentry cases, it is permissible in the Second Circuit to let a prior conviction affect both components.
“Double counting” under § 2L1.2: This is shorthand for using the same prior conviction to increase the offense level and to add criminal history points. The Second Circuit has long allowed this in illegal reentry cases (Pereira), viewing the two calculations as serving distinct sentencing functions.
Consecutive vs. concurrent sentences: A consecutive sentence starts after another sentence ends; a concurrent sentence is served at the same time. Federal courts may order federal sentences to run consecutively to state sentences, subject to statutory and Guidelines considerations.
Summary order and citation rules: This decision is a “summary order,” which in the Second Circuit does not have precedential effect. Parties may cite it under Fed. R. App. P. 32.1 and Local Rule 32.1.1, with the “summary order” notation and service requirements for unrepresented parties.
§ 3553(a) factors: These include the nature and circumstances of the offense; the defendant’s history and characteristics; the need for the sentence to reflect seriousness, provide deterrence, protect the public, and offer rehabilitation; the kinds of sentences and ranges established by the Guidelines; and the need to avoid unwarranted disparities.

Conclusion

United States v. Garcia-Gonzalez reinforces two bedrock features of federal sentencing review in the Second Circuit: the demanding standard for overturning a sentence as substantively unreasonable and the permissibility of § 2L1.2’s “double counting” in unlawful reentry cases. The district court’s emphasis on extensive immigration recidivism, serious criminal conduct, and the goals of deterrence and public protection easily supported a high-end Guidelines sentence within the “range of permissible decisions.”

For practitioners, the decision underscores the importance of making policy-based critiques of the Guidelines explicitly at sentencing and assembling a mitigation record that anticipates and addresses the court’s concerns about recidivism and public safety. For courts, the order illustrates a careful, well-explained balancing of § 3553(a) factors that will routinely be sustained on appeal, especially when the sentence lies within the advisory range and is justified by a detailed record.