United States v. Mario Alvarez-Aldana ( 2014 )

UNPUBLISHED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 Decided: February 12, 2014
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
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 for clear error and its legal
conclusions de novo. 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 claim, a [claimant] must
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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
1089, 1091 (9th Cir. 2007) (addressing equal protection
challenge to USSG § 2L1.2(b)(1)(A)) (citations 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. 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) (quoting 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[.]”
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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. See also United
States v. Perez-Perez, 737 F.3d 950, 952 (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. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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