United States v. Barragan-Flores, Raf , 182 F. App'x 576 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2006*
Decided May 31, 2006
Before
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3477
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 05-CR-069-C-01
RAFAEL BARRAGAN-FLORES, Barbara B. Crabb,
Defendant-Appellant. Chief Judge.
ORDER
Rafael Barragan-Flores, a Mexican citizen, was convicted of being in the
United States without permission after his removal. See 8 U.S.C. § 1326(a). He
appeals his 37-month sentence and argues that the lack of a “fast-track” program in
the Western District of Wisconsin, see Prosecutorial Remedies and Tools Against
the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, § 401, 117 Stat.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3477 Page 2
650, 675; U.S.S.G. § 5K3.1, creates a disparity with § 1326(a) sentences imposed in
districts that have such a program. We have already rejected the argument that
any resulting disparity could render a sentence unreasonable, see United States v.
Martinez-Martinez, 442 F.3d 539, 542-43 (7th Cir. 2006); United States v. Galicia-
Cardenas, 443 F.3d 553, 555 (7th Cir. 2006) (per curiam), but Barragan-Flores
contends that the differing treatment violates his right to due process and equal
protection under the United States Constitution. We reject this contention and
affirm the judgment.
We review Barragan-Flores’s argument only for plain error because he did
not raise it in the district court. See United States v. Vonn, 535 U.S. 55, 62-63
(2002); United States v. Castillo, 406 F.3d 806, 822 (7th Cir. 2005). Barragan-Flores
attempts to frame his argument principally as a “geographically based equal
protection” claim that warrants strict-scrutiny analysis. But only convicted felons
are affected by the presence or absence of a fast-track program, and convicted felons
are not a suspect class. See United States v. Wicks, 132 F.3d 383, 389 (7th Cir.
1997); United States v. Carroll, 110 F.3d 457, 461-62 (7th Cir. 1997). All that
matters, then, is whether the legislative judgment to give the Attorney General the
discretion to decide where to implement fast-track programs is rationally related to
a legitimate government interest. See Chapman v. United States, 500 U.S. 453,
464-65 (1991); Carroll, 110 F.3d at 461-62. As our sister circuits have recognized,
fast-track programs are rationally related to the government’s legitimate interest in
conserving prosecutorial and judicial resources. See, e.g., United States v. Marcial-
Santiago, Nos. 05-30248, 05-30249, 05-30251, 2006 WL 1215444, at *3 (9th Cir.
May 8, 2006); United States v. Melendez-Torres, 420 F.3d 45, 53 (1st Cir. 2005).
Thus the implementation of fast-track programs in some but not all districts does
not violate Barragan-Flores’s equal protection rights. Moreover, it does no good for
Barragan-Flores to cloak his same argument in due process terminology; in this
context the analysis, and the result, is the same. See Chapman, 500 U.S. at 465;
Marcial-Santiago, 2006 WL 1215444, at *3.
AFFIRMED.