US v. Fidel Alejo-Pena

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00150-H-1 Copies to all parties and the district court/agency. [998871115].. [11-5195]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

equal

must

an

protection

claim,

a

[claimant]

first

demonstrate that he has been treated differently from others
with

whom

treatment

he
was

discrimination.”
Cir. 2001).
the

court

is

similarly

the

result

situated
of

and

that

intentional

the

or

unequal

purposeful

Morrison v. Garraghty, 239 F.3d 648, 654 (4th

If a claimant succeeds in making such a showing,
must

determine

whether

the

under the requisite level of scrutiny.

disparity

is

justified

Id.

The Sentencing Guidelines may properly be challenged
on equal protection grounds, and the “relevant test is whether
the

classification

is

government interest.’”

‘rationally

related

to

a

legitimate

United States v. Ruiz-Chairez, 493 F.3d
2

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1089,

1091

challenge

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(9th

Cir.

to

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2007)

USSG

(addressing

equal

protection

§ 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

it[.]”

Heller

conceivable
v.

Doe,

509

basis
U.S.

which

312,

might
(1993)

320

support
(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

States v.

drug-related

Adeleke,

968

F.2d

and

violent

1159,

1160

crimes”);
(11th

Cir.

United
1992)

(rejecting equal protection argument that § 2L1.2 effectively
punishes illegal reentrants, and not citizens, twice for the
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same crime).
“every

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Moreover, the burden is on Alejo-Pena to negate

conceivable

basis”

which

might

support

the

enhancement, see Heller, 509 U.S. at 320, and Alejo-Pena has
failed to meet this burden.
Accordingly,
dispense

with

oral

we

affirm

argument

the

because

criminal
the

judgment.

facts

and

We
legal

contentions are adequately expressed in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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