APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, (D.C. Crim. No. 08-cr-00277-001), District Judge: Honorable Renee M. Bumb.
The opinion of the court was delivered by: Barry, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) November 18, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges.
Appellant Raul Lopez-Reyes appeals his 46 month prison sentence, which was imposed after he pled guilty to illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). We will affirm.
Lopez-Reyes is a native and citizen of Mexico who, three times, entered the United States in an effort to secure employment so that he could financially support his family members living in Mexico. On December 16, 1994, shortly after his first entry into the United States, Lopez-Reyes pled guilty to robbery charges in New Jersey Superior Court and received a ten year prison sentence. He was deported on June 4, 1997. Less than four years later, on February 21, 2001, Lopez-Reyes again entered the United States, this time by way of the Rio Grande River. He was apprehended two days later at a Texas airport and subsequently deported after spending one day in prison.
Sometime before October 2005, Lopez-Reyes returned to the United States.*fn1 He settled in Atlantic City, New Jersey, where he worked at a restaurant. On December 9, 2007, he was pulled over for a routine traffic stop, but after the police officers smelled marijuana emanating from the vehicle and Lopez-Reyes produced a fraudulent driver's license, he was arrested. While in custody, he disclosed his illegal status.
Lopez-Reyes was charged with illegally re-entering the United States subsequent to a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2), and he pled guilty on August 11, 2008. With a total offense level of 21 (including a 16 level increase for the deportation following his state robbery conviction) and a criminal history category of III, the applicable Guidelines range was 46-57 months' imprisonment. At the sentencing hearing on January 8, 2009, the District Court imposed a sentence of 46 months' imprisonment and three years of supervised release.
Lopez-Reyes timely appealed. He argues: (1) the District Court misapprehended its authority to categorically vary from the Guidelines range based solely on a policy disagreement with U.S.S.G. § 2L1.2; (2) his sentence is substantively unreasonable because the 16 level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) overstates the gravity of the offense; and (3) the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1)-(2) are unconstitutional.*fn2
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C. § 3121, and we have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Sentencing courts must engage in a three-step analysis to determine the appropriate sentence to impose on a defendant. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The process begins by "correctly calculating the applicable Guidelines range." United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008). Of course, the Guidelines are only advisory, but they nonetheless provide the "initial benchmark." Gall v. United States, 552 U.S. 38, 39 (2007). Next, the sentencing court must "formally rule on the motions of both parties and state on the record whether [it is] granting a departure and how that departure affects the Guidelines calculation...." Wise, 515 F.3d at 216 (quoting Gunter, 462 F.3d at 247). At the final step, the court is "required to exercise [its] discretion by considering the ...