US v. Mario Alvarez-Aldana
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:12-cr-00078-D-1 Copies to all parties and the district court/agency. [999296131].. [13-4094]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO ALVAREZ-ALDANA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00078-D-1)
Submitted:
January 30, 2014
Before WYNN and
Circuit Judge.
FLOYD,
Circuit
Decided:
Judges,
and
February 12, 2014
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
In 2002 Mario Alvarez-Aldana entered no contest pleas
in North Carolina state court to two counts of taking indecent
liberties with a minor.
In October 2012 Alvarez-Aldana pled
guilty to illegal reentry of an aggravated felon, under 8 U.S.C.
§ 1326(a), (b)(2) (2012), and was sentenced to forty-one months
of
imprisonment,
the
bottom
of
his
advisory
Sentencing
Guidelines range.
On
appeal,
Alvarez-Aldana
contests
his
Sentencing
Guidelines range enhancement of sixteen levels because his North
Carolina convictions for taking indecent liberties with a child
were
considered
crimes
of
violence
under
U.S.
Sentencing
Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2012), arguing
that the enhancement as applied to non-citizens is a violation
of equal protection.
In assessing a challenge to a district
court’s application of the Sentencing Guidelines, we review the
court’s
factual
findings
conclusions de novo.
for
clear
error
and
its
legal
United States v. Sosa–Carabantes, 561 F.3d
256, 259 (4th Cir. 2009).
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) (citation omitted).
“To
succeed
on
an
equal
protection
2
claim,
a
[claimant]
must
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first
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demonstrate
that
he
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has
been
treated
differently
from
others with whom he is similarly situated and that the unequal
treatment
was
the
discrimination.”
Cir. 2001).
the
court
result
of
intentional
or
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.”
1089,
1091
challenge
(9th
to
rationally
§
to
a
legitimate
United States v. Ruiz-Chairez, 493 F.3d
Cir.
USSG
related
2007)
(addressing
2L1.2(b)(1)(A))
equal
(citations
protection
and
internal
quotation omitted); see United States v. D’Anjou, 16 F.3d 604,
612 (4th Cir. 1994) (applying rational basis test to Guidelines
equal protection challenge).
Rational basis review does not
require the court to identify Congress’ actual rationale for the
distinction.
‘plausible
Commc’ns,
The
reasons’
Inc.,
508
statute
for
U.S.
will
be
Congress’
307,
upheld
action.”
313-14
(1993)
if
FCC
“there
v.
(quoting
States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).
are
Beach
United
The
burden is on the one raising the equal protection challenge to
negate
“every
conceivable
basis
3
which
might
support
it[.]”
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Heller v. Doe, 509 U.S. 312, 320 (1993) (citation and internal
quotation omitted).
We have reviewed Alvarez-Aldana’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, 1160-61 (11th Cir. 1992) (rejecting
equal
protection
argument
that
§
2L1.2
effectively
punishes
illegal reentrants, and not citizens, twice for the same crime).
Moreover, the burden is on Alvarez-Aldana to negate any basis
which might support the enhancement, see Heller, 509 U.S. at
320, and he has failed to meet this burden.
States
v.
Perez-Perez,
737
F.3d
950,
952
See also United
(4th
Cir.
2013)
(finding that taking indecent liberties with a minor under N.C.
Gen. Stat. § 14–202.1(a) qualified categorically as sexual abuse
of a minor and therefore was a crime of violence within the
meaning of USSG § 2L1.2(b)(1)(A)).
Accordingly, we affirm Alvarez-Aldana’s sentence.
dispense
with
oral
argument
because
4
the
facts
and
We
legal
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contentions
are
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adequately
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presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
5
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