UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FIDEL ALEJO-PENA, a/k/a Patricio Martinez Pena,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00150-H-1)
Submitted: May 24, 2012 Decided: June 8, 2012
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fidel Alejo-Pena appeals his seventy-seven-month
sentence for illegal reentry after deportation by an aggravated
felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006).
Finding no error, we affirm.
On appeal, Alejo-Pena challenges the imposition of a
sixteen-level enhancement pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2011) on equal protection
grounds. The Equal Protection Clause of the Fourteenth
Amendment prohibits “governmental decisionmakers from treating
differently persons who are in all relevant respects
alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “To succeed
on an equal protection claim, a [claimant] must first
demonstrate that he has been treated differently from others
with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful
discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001). If a claimant succeeds in making such a showing,
the court must determine whether the disparity is justified
under the requisite level of scrutiny. Id.
The Sentencing Guidelines may properly be challenged
on equal protection grounds, and the “relevant test is whether
the classification is ‘rationally related to a legitimate
government interest.’” United States v. Ruiz-Chairez, 493 F.3d
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1089, 1091 (9th Cir. 2007) (addressing equal protection
challenge to USSG § 2L1.2(b)(1)(A)) (citations
omitted); see United States v. D’Anjou, 16 F.3d 604, 612 (4th
Cir. 1994) (applying rational basis test to equal protection
challenge to former version of USSG § 2D1.1(c)). Rational basis
review does not require the court to identify Congress’ actual
rationale for the distinction. The statute will be upheld if
“there are ‘plausible reasons’ for Congress’ action.” FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993) (citing United
States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)). The
burden is on the one raising the equal protection challenge to
negate “every conceivable basis which might support
it[.]” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal
quotation marks omitted).
We have reviewed Alejo-Pena’s arguments on appeal and
conclude that he has failed to establish any violation under the
Equal Protection Clause. See Ruiz-Chairez, 493 F.3d at 1091
(denying equal protection challenge to § 2L1.2 on rational basis
review, finding that “enhancement serves the legitimate
government interest of deterring illegal reentry by those who
have committed drug-related and violent crimes”); United
States v. Adeleke, 968 F.2d 1159, 1160 (11th Cir. 1992)
(rejecting equal protection argument that § 2L1.2 effectively
punishes illegal reentrants, and not citizens, twice for the
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same crime). Moreover, the burden is on Alejo-Pena to negate
“every conceivable basis” which might support the
enhancement, see Heller, 509 U.S. at 320, and Alejo-Pena has
failed to meet this burden.
Accordingly, we affirm the criminal judgment. We
dispense with oral argument because the facts and legal
contentions are adequately expressed in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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