United States v. Lozano, 138 F.3d 915 (11th Cir. 1998). · Go Syfert
United States v. Lozano, 138 F.3d 915 (11th Cir. 1998). Cases Citing This Book View Copy Cite
12 citation events (4 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Robert Hall (ca11, 2015-07-15)
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Robert Hall
11th Cir. · 2015 · confidence medium
“The Ex Post Facto Clause bars laws that retroactively alter the definition of crime or increase the punishment for criminal acts.” United States v. Lozano, 138 F.3d 915, 916 (11th Cir.1998) (internal quotation marks omitted).
discussed Cited as authority (rule) Larry Edward Stephens v. State Board of Pardons
11th Cir. · 2005 · confidence medium
“Two elements must be present before a court can find an ex post facto violation: [f]irst, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.” United States v. Lozano, 138 F.3d 915, 916 (11th Cir. 1998) (internal marks and citations omitted).
cited Cited as authority (rule) United States v. Aldape-Mendoza
6th Cir. · 2001 · confidence medium
United States v. Lozano, 138 F.3d 915, 916-17 (11th Cir.1998) (collecting cases).
discussed Cited as authority (rule) United States v. Stephen Gene Reynolds
11th Cir. · 2000 · signal: cf. · confidence medium
Cf., United States v. Lozano, 138 F.3d 915, 916-17 (11th Cir. 1998)(upholding the application of an enhancement under 8 U.S.C. §1326 (a) based upon the commission of a prior aggravated felony, although the defendant committed the prior felony before the enactment of the enhancement).
discussed Cited as authority (rule) United States v. Stephen Gene Reynolds
11th Cir. · 2000 · signal: cf. · confidence medium
Cf., United States v. Lozano, 138 F.3d 915, 916-17 (11th Cir.1998)(upholding the application of an enhancement under 8 U.S.C. § 1326 (a) based upon the commission of a prior aggravated felony, although the defendant committed the prior felony before the enactment of the enhancement). *1214 We are also unpersuaded by Reynolds’s argument that the district court erred in finding that the sentence imposed pursuant to the ACCA did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
discussed Cited as authority (rule) Koch v. Lewis
D. Ariz. · 2000 · confidence medium
A law is prohibited as ex post acto if it “ ‘punishes as a crime an act previously committed, which was innocent when done, ... makes more burdensome the punishment for a crime, after its commission, or ... deprives one charged with a crime of any defense available according to law at the time when the act was committed ...’” Collins v. Youngblood, 497 U.S. 37, 42 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990), quoting Beazell v. Ohio, 269 U.S. 167, 169-70 , 46 S.Ct. 68 , 70 L.Ed. 216 (1925); see also Miller v. Florida, 482 U.S. 423, 430 , 107 S.Ct. 2446 , 96 L.Ed.2d 351 (1987); California D…
discussed Cited as authority (rule) United States v. Rosario-Delgado
11th Cir. · 1999 · confidence medium
As we have previously explained, “[t]wo elements must be present before a court can find an ex post facto violation: ‘[F]irst, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’; and second, ‘it must disadvantage the offender affected by it’.’” United States v. Lozano, 138 F.3d 915, 916 (11th Cir. 1998) (citations omitted).
discussed Cited as authority (rule) United States v. Rosario-Delgado
11th Cir. · 1999 · confidence medium
As we have previously explained, “[t]wo elements must be present before a court can find an ex post facto violation: ‘[F]irst, the law “must be retrospective, that is, it must apply to events occurring before its enactment”; and second, “it must disadvantage the offender affected by it”.’ ” United States v. Lozano, 138 F.3d 915, 916 (11th Cir.1998) (citations omitted).
discussed Cited "see" United States v. Escarino-Carrillo
10th Cir. · 2000 · signal: see · confidence high
See United States v. Lozano , 138 F.3d 915, 916-17 (11th Cir. 1998) (“At the time of the 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.
discussed Cited "see, e.g." Tapia-Garcia v. United States (2×)
S.D.N.Y. · 1999 · signal: see, e.g. · confidence medium
See, e.g., United States v. Lozano, 138 F.3d 915, 916-17 (11th Cir.1998); United States v. Baca-Valenzuela, 118 F.3d 1223, 1228-29 (8th Cir.1997); United States v. Campbell, 94 F.3d 125, 126-28 (4th Cir.1996), cert. denied, 520 U.S. 1242 , 117 S.Ct. 1847 , *375 137 L.Ed.2d 1050 (1997); Scheidemann v. INS, 83 F.3d 1517, 1523-25 (3d Cir.1996); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.), cert. denied, 519 U.S. 885 , 117 S.Ct. 218 , 136 L.Ed.2d 151 (1996); United States v. Saenz-Forero, 27 F.3d 1016, 1020-21 (5th Cir.1994); United States v. Troncoso, 23 F.3d 612, 613-14 (1st C…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Melquisedec LOZANO, Defendant-Appellant
97-4004.
Court of Appeals for the Eleventh Circuit.
Apr 9, 1998.
138 F.3d 915
1998 U.S. App. LEXIS 7110
1998 WL 163719
Fred Haddad, Ft. Lauderdale, FL, for Defendant-Appellant., William A. Keefer, U.S. Atty., Ft. Lauder-dale, FL, Dawn Bowen, Marc Fagelson, Anne Schulz, Stephanie K. Pell, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Cox, Hull, Fay.
Cited by 10 opinions  |  Published
Pinpoint authority: bottom 56%
FAY, Senior Circuit Judge:

Melquisedec Lozano pled guilty to being found in the United States after illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a). The district court sentenced Lozano to a. prison term of 46 months. Lozano appeals his sentence, arguing that the enhancement of his sentence pursuant to U.S.S.G. § 2L1.2(b)(2) violated the Ex Post Facto Clause of the U.S. Constitution. We disagree and affirm.

Facts

Lozano was convicted for cocaine distribution in the Eastern District of Michigan on December 16, 1987 and was deported on October 22, 1992. He was discovered in the United States on January 9, 1996 and was arrested. He pled guilty to a one-count indictment on October 8, 1996. The Presen-tence Investigation Report (“PSI”) assigned Lozano a base offense level of eight pursuant to U.S.S.G. § 2L1.2. The PSI recommended a 16-level increase pursuant to § 2L1.2(b)(2) because Lozano’s previous deportation was subsequent to an aggravated felony. Three levels were deducted under § 3E1.1 due to Lozano’s acceptance of responsibility, leaving him with an adjusted offense level of 21 and a guideline range of 46 to 57 months. Loza-no filed several, objections to the PSI, including one based on the ex post facto argument discussed below. Each objection was overruled and the district court sentenced Lozano on December 20, 1996, to 46 months’ imprisonment.

Discussion

Lozano contends that the 16 level aggravated felony enhancement violates the Ex Post Facto Clause of the Constitution. [1] His claim is based upon the proposition that the sentence enhancement in this ease punishes him for his 1987 conduct under a law and a guideline not effective in 1987. We review this claim de novo. See United States v. Robinson, 935 F.2d 201, 203 (11th Cir.1991).

Article I, section 9 of the Constitution provides, “No Bill of Attainder or ex post facto Law shall be passed.” The Ex Post Facto Clause bars laws that “retroactively alter the definition of crime or increase the punishment for criminal acts.” California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995), quoting, Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990). Two elements must be present before a court can find an ex post facto violation: “[F]irst, the law ‘must be retrospective, that is, it must apply to events occurring before its enactment’; and second, ‘it must disadvantage the offender affected by it.’ ” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987), quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Robinson, 935 F.2d at 204.

We agree with every circuit to address the issue that the “aggravated felony” provision of U.S.S.G. § 2L1.2 is not retrospective arid,[*917] therefore, is not ex post facto. See United States v. Baca-Valenzuela, 118 F.3d 1223, 1231 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1001 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Saenz-Forero, 27 F.3d 1016, 1020 (5th Cir.1994); United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994). The offense for which Lozano was sentenced was being found in the United States after illegally reentering the country. See Almendarez-Torres v. United States, 66 U.S.L.W. 4213, 4214-16 (U.S.1998); United States v. Palacios-Casquete, 55 F.3d 557, 560 (11th Cir.1995). At the time of the commission of that offense, the penalties were unambiguous, and any subsequent changes have not been applied to Lozano’s detriment. [2] This analysis is consistent with Supreme Court case law upholding statutes aimed at punishing recidivists. See, e.g., Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948) (“[The sentence] is a stiffened penalty for the latest ciime, which is considered to be an aggravated offense because a repetitive one.”); McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542 (1901) (“The statute, imposing a punishment on none but future crimes, is not ex post facto.”).

AFFIRMED.

1

. Lozano also challenges the district court’s denial of his motion for downward departure. We see no basis for challenging the court’s discretion in this regard.

2

. The 16-level enhancement was provided by an amendment to the Sentencing Guidelines effective on November 1, 1991, pre-dating Lozano’s offense by over four years.