United States v. Saul Rios-Luna

Case: 14-40999 Document: 00513202991 Page: 1 Date Filed: 09/22/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40999 FILED
Summary Calendar September 22, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SAUL RIOS-LUNA, also known as Agustin Lopez-Mijangos,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-266

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Saul Rios-Luna (Rios) pleaded guilty to being an alien unlawfully
present in the United States after a previous deportation in violation of 8
U.S.C. § 1326. The district court imposed a within-guidelines sentence of 41
months of imprisonment.
Initially, Rios argues that the district court’s application of the 16-level
offense enhancement provision under U.S.S.G. § 2L1.2(b)(1)(A)(i) violates the

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 14-40999 Document: 00513202991 Page: 2 Date Filed: 09/22/2015

No. 14-40999

Constitution’s guarantee of equal protection because the Guideline: (1) uses
prior convictions to enhance the offense level; (2) lacks an empirical basis; (3)
results in excessive sentences as compared to sentences for more egregious
crimes; and (4) double-counts the prior conviction. However, the enhancement
of Rios’s sentence under § 2L1.2(b)(1)(A) did not violate his right to equal
protection of the law. See United States v. Cardenas-Alvarez, 987 F.2d 1129,
1134 (5th Cir. 1993). We have emphasized that the Sentencing Commission
intended, in singling out certain offenses under § 2L1.2 for significant
enhancement, to identify and to penalize those crimes that are violent or
forceful, or risk violence and the application of force. United States v. Zavala-
Montoya, 71 F. App’x 358, 361 (5th Cir. 2003). Moreover, we have consistently
rejected “double counting” arguments and arguments that § 2L1.2 results in
excessive sentences because it is not empirically based. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
In addition, Rios maintains that he should have been sentenced under
§ 1326(a) and that his sentence is unconstitutional because the conviction used
to enhance his sentence was not alleged in his indictment. As Rios
acknowledges, his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998). See United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007).
Finally, Rios argues that the enhancement provision of § 2L1.2 violates
his Eighth Amendment protection against cruel and unusual punishment.
However, his within-guidelines sentence is not grossly disproportionate to his
offense such that it violates the Eighth Amendment. See Cardenas-Alvarez,
987 F.2d at 1134.
AFFIRMED.

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