United States v. Valdez-Cejas ( 2022 )

Case: 21-10659 Document: 00516416775 Page: 1 Date Filed: 08/02/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 2, 2022
No. 21-10659 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Fernando Valdez-Cejas,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-332-1
Before Stewart, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Fernando Valdez-Cejas appeals the district court’s judgment
imposing a within-guidelines sentence of 87 months of imprisonment
following his guilty-plea conviction for being unlawfully present in the United
States for the fourth time after being removed. We affirm.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10659 Document: 00516416775 Page: 2 Date Filed: 08/02/2022
No. 21-10659
I. FACTUAL & PROCEDURAL BACKGROUND
In February 2021, Valdez-Cejas pled guilty to being found unlawfully
present in the United States following a prior removal in violation of 8 U.S.C.
§ 1326. When law enforcement officials encountered him in October 2020,
he admitted that he was removed to Mexico in February 2020 and that he
was in the United States without permission. The Presentence Investigation
Report (“PSR”) reflected that he had been sentenced in 2017 to 40 months
in prison for illegal reentry following removal. His February 2020 removal
was his fourth, and it took place just days after he was released from the
custody of the Bureau of Prisons on the 2017 illegal-reentry case. His 2017
illegal-reentry conviction received three criminal history points pursuant to
U.S.S.G. § 4A1.1(a). See U.S.S.G. § 4A1.1(a) (assigning three points for a
prior prison sentence exceeding 13 months). It also increased his offense level
by four levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). With a total offense
level of 20 and his placement in Criminal History Category VI, Valdez-Cejas
was subject to a within-guidelines imprisonment range of 70 to 87 months.
Valdez-Cejas objected to the PSR because his 2017 conviction for
illegal reentry was used both to increase his offense level and to increase his
criminal history score. He argued that this resulted in his prior conviction
being double counted for purposes of determining his advisory guidelines
range. The district court overruled the objection and sentenced him to 87
months of imprisonment to be followed by a three-year term of supervised
release. Valdez-Cejas filed this appeal, arguing for the first time that the
application of U.S.S.G. § 2L1.2(b)(1)(A) to alien defendants, like himself,
violates his right to equal protection.
II. STANDARD OF REVIEW
Valdez-Cejas did not challenge his sentence on equal-protection
grounds to the district court so we review the issue for plain error only. See
2
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No. 21-10659
United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007) (reviewing for-
feited constitutional error in the sentencing context for plain error). To show
plain error, he must establish an error that was clear or obvious and that af-
fected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public repu-
tation of judicial proceedings. Id.III. DISCUSSION
“The essence of an equal protection claim is that other persons simi-
larly situated as is the claimant unfairly enjoy benefits that he does not or es-
cape burdens to which he is subjected.” United States v. Cronn, 717 F.2d 164,
169 (5th Cir. 1983). In United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131,
1134 (5th Cir. 1993), this court considered a direct criminal appeal in a § 1326
case that involved an enhancement under § 2L1.2. Cardenas-Alvarez argued
that the § 2L1.2 enhancement’s disproportionate effect on his sentence cre-
ated an equal-protection violation. Id. at 1133–34. This court rejected the
equal-protection challenge reasoning that “[t]he Supreme Court has upheld
the constitutionality of the guidelines” which “were devised to and do treat
[equally] all persons” who violate § 1326 and qualify for § 2L1.2 enhance-
ments. Id. at 1134 (“In challenging his sentence, Cardenas raises essentially
an equal protection argument. However, the guidelines were devised to and
do treat all persons with aggravated felonies who commit this crime
equally.”); accord United States v. Martinez, 477 F. App’x 248, 250 (5th Cir.
2012) (per curiam) (unpublished) (“The application of the 16–level enhance-
ment does not violate equal protection because it treats equally all persons
with qualifying serious prior offenses who commit an illegal reentry of-
fense.”).
3
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No. 21-10659
Valdez-Cejas acknowledges our holding in Cardenas-Alvarez but ar-
gues that Cardenas-Alvarez compared the treatment of the various aliens who
were subject to the double-counting caused by § 2L1.2 enhancements based
on prior convictions. According to Valdez-Cejas, the “correct class compar-
ison is between aliens who are subjected to double counting of prior convic-
tions in guideline calculations and United States citizens who are not sub-
jected to the double counting of prior convictions in the calculation of their
guideline range.” We disagree. Given the Cardenas-Alvarez panel’s equal-
protection holding and the lack of any published authority supporting Valdez-
Cejas’s argument, he cannot show that the district court plainly erred by ap-
plying the § 2L1.2 enhancement here. 1 See Puckett, 556 U.S. at 135; United
States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). 2
IV. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
1
The Eleventh Circuit has considered and rejected an argument that different
§ 2L1.2 enhancements make an irrational distinction between aliens with prior felony
convictions and citizens with prior felony convictions for equal-protection purposes. See
United States v. Osorto, 995 F.3d 801, 820–22 (11th Cir.), cert. denied, 142 S. Ct. 470 (2021).
That court held that “the group of individuals arguably discriminated against by
[§ 2L1.2’s] double-counting is not all noncitizens; it is the smaller subset of noncitizens
who are unlawfully present in the United States and have committed at least one other
qualifying violation.” Osorto, 995 F.3d at 820 (citing Cardenas-Alvarez, 987 F.2d at 1134).
2
We also reject Valdez-Cejas’s ancillary argument that § 2L1.2(b)(1)(A) violates
Congress’s directive at 28 U.S.C. § 994(d) that the Sentencing Commission is prohibited
from considering national origin in promulgating the Guidelines. This court has held that
“‘alienage’ and ‘national origin’ are not synonymous.” United States v. Nnanna, 7 F.3d
420, 422 (5th Cir. 1993); see also Osorto, 995 F.3d at 822 (rejecting argument similar to that
raised by Valdez-Cejas and explaining that alienage means not being a United States citizen,
while national origin pertains to a person’s country of birth).
4