United States v. Bernito Ben Eugene

Case: 18-14222 Date Filed: 09/13/2019 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14222 Non-Argument Calendar ________________________ D.C. Docket No. 2:16-cr-00131-SPC-CM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BERNITO BEN EUGENE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (September 13, 2019) Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges. PER CURIAM: Case: 18-14222 Date Filed: 09/13/2019 Page: 2 of 12 Bernito Eugene appeals the procedural and substantive reasonableness of his sentence for illegal reentry into the United States by a deported felon, in violation of 8 U.S.C. §§ 1326(a), (b)(2). At the time of sentencing, Eugene was already serving a 60-month sentence in Florida state prison and a fully concurrent 39-month federal sentence, both for unrelated crimes. The district court imposed a 24-month sentence, which was at the low end of the Guidelines range. It ordered seven months to be served concurrently to the Florida sentence with the remaining 17 months served consecutively. Eugene had argued that his entire federal sentence should run concurrently to his Florida sentence. He now appeals, arguing that the district court’s imposition of a partially concurrent sentence was both procedurally and substantively unreasonable. I. The facts surrounding Bernito Eugene’s conviction in this case are well- known to the parties. We recount below a synopsis of those facts relevant to his appeal. On June 9, 2016, Eugene was arrested by the Hendry County Sheriff’s Office for cocaine trafficking, among other charges. While he was in Hendry County Jail, Immigration and Customs Enforcement (ICE) determined that Eugene was a citizen of Haiti and the Bahamas and filed an immigration detainer against him. A search of the ICE database revealed that in 1996, Eugene had been 2 Case: 18-14222 Date Filed: 09/13/2019 Page: 3 of 12 convicted of Aggravated Battery with a Firearm in Broward County, and that he was deported in 1999 after serving his sentence. While still in county jail on the cocaine trafficking charge, Eugene was served with two federal indictments. First, on November 9, 2016, the Middle District of Florida charged Eugene with illegal reentry (the offense relevant here). Then, on January 20 of the following year, the Southern District of Florida charged Eugene with aggravated identity theft and making a false statement in a passport application. The dispute in this appeal arises from what happened next. On May 11, 2017, Eugene received a 60-month term of imprisonment with the Florida Department of Corrections on the cocaine trafficking charge. Then, while he was still within the jurisdiction of the Middle District, U.S. Marshals transported Eugene to the Southern District to stand trial for aggravated identity theft and making a false statement on a passport application. He was arraigned on June 2. On December 4, 2017, the Southern District sentenced Eugene to 39 months to be served concurrently with Eugene’s 60-month Florida term. Finally, on February 22, 2018, Eugene was arrested for illegal reentry—more than 20 ...

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