United States v. Ruiz-Chairez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10226
Plaintiff-Appellee, D.C. No.
v.  CR-04-20066-JF/
ROMAN RUIZ-CHAIREZ, HRL
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
April 16, 2007—San Francisco, California
Filed July 6, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Stephen S. Trott, Circuit Judge, and Barry Ted Moskowitz,*
District Judge.
Opinion by Chief Judge Schroeder
*The Honorable Barry Ted Moskowitz, U.S. District Judge for the
Southern District of California, sitting by designation.
8091
UNITED STATES v. RUIZ-CHAIREZ 8093
COUNSEL
Lara S. Vinnard, Assistant Federal Public Defender, San Jose,
California, for the defendant-appellant.
Erika R. Frick, Assistant United States Attorney, San Fran-
cisco, California, for the plaintiff-appellee.
OPINION
SCHROEDER, Chief Judge:
Appellant Roman Ruiz-Chairez appeals his 54 month sen-
tence imposed after being convicted of being found in the
United States after having been previously deported in viola-
tion of 8 U.S.C. § 1326. Because Ruiz had previously been
convicted of both a crime of violence and a drug trafficking
offense, the government sought and obtained a 16 level
enhancement authorized by U.S.S.G. § 2L1.2(b)(1)(A), which
relates to illegal reentry sentences. Ruiz contends his sentence
violates his equal protection rights because he received a 16
level enhancement when the same priors would give rise to a
lesser enhancement for those convicted of other felonies. See
e.g. U.S.S.G. § 2K2.1(a)(4) (relating to felon in possession of
a firearm).
8094 UNITED STATES v. RUIZ-CHAIREZ
We affirm Ruiz’s 16 level sentence enhancement. The Sen-
tencing Commission did not act arbitrarily in treating a felon
like Ruiz, who is convicted of being found in the United
States after having been previously deported, more severely
than a felon who is convicted of a different crime.
BACKGROUND
Ruiz is a native and citizen of Mexico who has been previ-
ously deported, and has several criminal convictions on his
record. His convictions include one for selling cocaine, for
which he was sentenced to three years in prison, and another
for domestic violence, for which he was sentenced to four
years in prison. He was last deported in 1999. In 2003, Ruiz
was found in the Bay Area, and the government indicted him
for being found in the United States after having been previ-
ously deported, in violation of 8 U.S.C. § 1326. Ruiz pleaded
guilty as charged.
The sentencing guidelines provide for a base offense level
of 8 for the violation of § 1326. U.S.S.G. § 2L1.2(a). It then
provides for differing levels of enhancements depending on
the nature and severity of the defendant’s criminal history.
Those who have been previously convicted of a “crime of vio-
lence” or a “drug trafficking offense” fall into the category of
illegal reentrants who receive a 16 level enhancement, the
stiffest enhancement under the illegal reentry guideline.
U.S.S.G. § 2L1.2(b)(1)(A)(I), (ii).
Ruiz has previously been convicted of selling cocaine,
which is a “drug trafficking offense,” and for domestic vio-
lence, which is a “crime of violence.” Either prior conviction
may therefore serve as the basis for § 2L1.2’s 16 level
enhancement. See U.S.S.G. § 2L1.2 n.1(b)(iii)-(iv) (defining
“Crime of violence” and “Drug trafficking offense”). The
total offense level in this case amounts to a sentence in the
range of 77 to 96 months.
UNITED STATES v. RUIZ-CHAIREZ 8095
At sentencing, the government sought the 16 level enhance-
ment, and Ruiz objected on equal protection grounds. Ruiz
argued that it was arbitrary for either his prior crime of vio-
lence or drug trafficking offense to result in an adjusted base
offense level of 24 for violating § 1326, when the same prior
conviction would result in an adjusted offense level of only 20
for another felony. Compare U.S.S.G. § 2L1.2(b)(1)(A) and
U.S.S.G. § 2K2.1(a)(4).
He gives as an example possession of a firearm by a felon,
which he contends is inherently more dangerous. The sentenc-
ing court rejected Ruiz’s argument, observing that the sen-
tence enhancement is intended to deter illegal reentry by
convicted felons, and thus concluded that the difference in
treatment between the targeted class of felons who have ille-
gally reentered after deportation, and those who are convicted
of another felony, has a rational basis. After considering miti-
gating circumstances, the court sentenced Ruiz to 54 months
imprisonment.
DISCUSSION
This appeal presents a relatively straightforward issue, but
one of first impression in this court: whether punishing illegal
reentrants more severely than other felons with the same prior
criminal record violates equal protection. Ruiz argues that the
sentence differential is arbitrary because crimes other than
illegal reentry, such as possession of a firearm by a felon, are
inherently more dangerous. We hold that the enhancement
level in § 2L1.2(b)(1)(A) has a rational basis and serves a
legitimate government interest. The 16 level enhancement did
not violate Ruiz’s right to equal protection.
[1] 8 U.S.C. § 1326 prohibits noncitizens from reentering
the United States if they have previously “been denied admis-
sion, excluded, deported, or removed.” 8 U.S.C. § 1326(a).
Such a violation may result in up to 20 years of imprisonment
depending on the noncitizen’s criminal history. 8 U.S.C.
8096 UNITED STATES v. RUIZ-CHAIREZ
§ 1326(a)-(b). We have recognized that § 1326 is a legitimate
exercise of Congress’s immigration power. See United States
v. Hernandez-Guerrero, 147 F.3d 1075, 1078 (9th Cir. 1998)
(holding that Congress possesses “ample authority to enact
§ 1326 pursuant to its inherent immigration power[ ]”).
[2] Section 2L1.2 of the Sentencing Guidelines effectuates
the illegal reentry statute, and provides for a base offense
level of 8 for illegal reentry convictions. It advises courts to
impose a 16 level enhancement if the defendant was removed
after “a conviction for a felony that is a drug trafficking
offense for which the sentence imposed exceeded 13
months[ ]” or for a “crime of violence[.]” U.S.S.G.
§ 2L1.2(b)(1)(A)(I)-(ii). We have also recognized U.S.S.G.
§ 2L1.2(b) to be a proper exercise of the Sentencing Commis-
sion’s delegated authority. In United States v. Ramirez-
Garcia, we explained that § 2L1.2 properly implements Con-
gress’s desire “to enhance the penalties for aliens with prior
convictions in order to deter others[ ]” by increasing the “sen-
tencing range for aliens with prior convictions.” United States
v. Ramirez-Garcia, 269 F.3d 945, 947-948 (9th Cir. 2001).
[3] The Sentencing Guidelines may properly be challenged
on equal protection grounds. See United States v. Dumas, 64
F.3d 1427, 1429 (9th Cir. 1995); United States v. Fine, 975
F.2d 596, 604 (9th Cir. 1992) (en banc) (“The Due Process
Clause of the Fifth Amendment precludes the imposition of
punishment based on arbitrary distinctions, and, in the sen-
tencing context, ‘essentially duplicates’ an argument based on
equal protection.”). The relevant test is whether the classifica-
tion is “rationally related to a legitimate government interest.”
City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
440 (1985). See also United States v. Harding, 971 F.2d 410,
412 (9th Cir. 1992). The burden falls on the party seeking to
disprove the rationality of the relationship between the classi-
fication and the purpose. Mathews v. Diaz, 426 U.S. 67, 82
(1976).
UNITED STATES v. RUIZ-CHAIREZ 8097
[4] Because the illegal reentry statute is a proper exercise
of Congress’s immigration power, see Hernandez-Guerrero,
147 F.3d at 1078, and because § 2L1.2 properly implements
this congressional directive, see Ramirez-Garcia, 269 F.3d at
947-48, we must conclude that the 16 level enhancement in
§ 2L1.2 serves a legitimate government interest and has a
rational basis. The enhancement serves the legitimate govern-
ment interest of deterring illegal reentry by those who have
committed drug-related and violent crimes.
An Eleventh Circuit decision, United States v. Adeleke, 968
F.2d 1159 (11th Cir. 1992), is instructive on this point. In
Adeleke, a noncitizen who had been convicted of illegal reen-
try also challenged his § 2L1.2 sentence enhancement on
equal protection grounds. He argued that because criminal
history adjustments already take a defendant’s prior criminal
history into account, § 2L1.2 effectively punishes illegal reen-
trants, and not citizens, twice for the same crime. Id. In reject-
ing this argument, the Eleventh Circuit noted that the
enhancement properly implements the legitimate government
interest in deterring the reentry of deported felons: “[T]he
Sentencing Commission may have concluded that an alien
who has been convicted of a felony should be strongly
deterred from re-entering the United States, a consideration
not present with respect to an American citizen.” Id.
Ruiz argues that the § 2L1.2 sentence enhancement has no
rational basis because crimes like possession of a firearm by
a felon are inherently more dangerous than illegal reentry, and
he challenges the government to proffer a basis for the sen-
tence differential. Ruiz’s argument fails for two reasons.
First, the government shoulders no burden to proffer a basis
for a distinction that Congress and the Sentencing Commis-
sion have made. As the Supreme Court has explained, that
burden is on, “the party challenging the constitutionality of
the particular line Congress has drawn,” and that party must
“advanc[e] principled reasoning that will at once invalidate
8098 UNITED STATES v. RUIZ-CHAIREZ
that line and yet tolerate a different line separating some
aliens from others.” Mathews, 426 U.S. at 82. Because our
circuit has already recognized that § 2L1.2 is a proper and
valid implementation of Congress’s desire to punish illegal
reentrants, the burden of establishing its irrationality falls
squarely on Ruiz.
Second, asking whether another crime is inherently more
dangerous than illegal reentry misses the point. To survive
rational basis review, the key question is whether the criminal
reentry enhancement bears some rational relation to a legiti-
mate government interest or purpose. Harding, 971 F.2d at
412. Here, that interest is deterring illegal reentry. Indeed in
1994, Congress expanded the scope of coverage of the illegal
reentry statute to cover those previously convicted, not only
of felonies, but also misdemeanors, so long as they involved
“drugs, crimes against the person, or both[.]” Pub. L. No. 103-
322, 108 Stat. 1796, *2023 (codified as amended at 8 U.S.C.
§ 1326(b)(1)). The 16 level enhancement for illegal reentrants
who have committed drug related and violent crimes has a
rational basis.
CONCLUSION
For the foregoing reasons, we AFFIRM Ruiz’s sentence.
We hold that § 2L1.2 does not deprive him of equal protec-
tion.