IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40909
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO SALAS-RODRIGUEZ, also known as Javier
Rodriguez-Rodriguez, also known as Enoc Lopez-Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-134-1
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Antonio Salas-Rodriguez ("Salas") appeals the 46-month
sentence imposed following his guilty plea, pursuant to a plea
agreement, to illegal reentry into the United States after
deportation following conviction of an aggravated felony, in
violation of 8 U.S.C. § 1326. Salas' plea agreement waived his
right to appeal his sentence except, inter alia, an "illegal"
sentence pursuant to 18 U.S.C. § 3742(a)(1). Salas' court-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-40909
-2-
appointed counsel has not briefed the applicability of the
appeal-waiver provision. The Government does not seek to enforce
the appeal waiver. Salas' appellate brief asserts that his
sentence violated the Eighth Amendment and that the enhanced
penalties imposed pursuant to U.S.S.G. § 2L1.2 violate the Equal
Protection Clause because the sentencing guidelines treat
convicted-felon aliens differently from convicted-felon citizens.
Salas' Eighth Amendment argument is foreclosed by this
court's precedent. See United States v. Cardenas-Alvarez, 987
F.2d 1129, 1134 (5th Cir. 1993) (rejecting disproportionality
challenge to 100-month sentence for illegal reentry).
Salas' equal-protection claim is specious; aliens who are
convicted of illegally reentering the United States after
deportation following a felony conviction are not similarly
situated to United States citizens with prior felony convictions.
See United States v. Cronn, 717 F.2d 164, 169 (5th Cir. 1983)
("The essence of an equal protection claim is that other persons
similarly situated as is the claimant unfairly enjoy benefits
that he does not or escape burdens to which he is subjected.").
The § 2L1.2 enhancement provision does not violate equal
protection because it "treat[s] all persons with aggravated
felonies who commit this crime equally." Cardenas-Alvarez, 987
F.2d at 1134.
Although Salas' appellate arguments amount to a superficial
assertion that his sentence was "illegal" and therefore
No. 01-40909
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appealable under an exception to the appeal waiver, his claims of
illegality have no merit. This appeal is frivolous, and it is
DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2.
Philip T. Cowan, Salas' attorney on appeal, is cautioned
that the filing of frivolous appeals may subject counsel to
sanctions, which may include not receiving payment for services
rendered and expenses incurred in the appeal. See United States
v. Gaitan, 171 F.3d 222, 222-24 (5th Cir. 1999).
APPEAL DISMISSED.