                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 11 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 19-50101

                Plaintiff-Appellee,             D.C. No. 2:18-cr-00614-PA-1

 v.
                                                MEMORANDUM*
EVERARDO VALENCIA ALCALA, AKA
Lalo Everardo Alcala, AKA Evarardo Alcala
Lalo, AKA Evarardo Alcala Valencia, AKA
Alcala Valencia, AKA Alcala Evarardo
Valencia, AKA Eduardo Valencia, AKA
Evarado Valencia, AKA Everardo Valencia,
AKA Lalo Valencia, AKA Eduardo
Valencia-Alcala, AKA Everado Valencia-
Alcala, AKA Everardo Valencia-Alcala,
AKA Gerardo Valencia-Alcala,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                           Submitted February 4, 2020**

Before:      FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Everardo Valencia Alcala appeals from the district court’s judgment and

challenges the 42-month sentence imposed following his bench-trial conviction for

being an illegal alien found in the United States following deportation, in violation

of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Alcala challenges the district court’s application of a four-level enhancement

pursuant to U.S.S.G. § 2L1.2(b)(3)(D). He first argues that the enhancement was

improper because the post-removal conviction at issue was reduced to a

misdemeanor pursuant to subsequent California state law. However, the change in

the status of that prior offense does not alter the fact that after Alcala was ordered

removed, he engaged in criminal conduct that resulted in a felony conviction. See

U.S.S.G. § 2L1.2(b)(3)(D) (2018); United States v. Yepez, 704 F.3d 1087, 1091

(9th Cir. 2012) (en banc) (“State courts cannot be given the authority to change a

defendant’s federal sentence by issuing a ruling that alters history and the

underlying facts.”); see also United States v. Diaz, 838 F.3d 968, 972-74 (9th Cir.

2016) (reclassification under California’s Proposition 47 does not invalidate

sentencing enhancement under 21 U.S.C. § 841). Alcala also argues that the

district court’s application of the challenged enhancement violated the Equal

Protection Clause. However, as this court has repeatedly held, no equal protection

violation occurs when defendants who commit the same crimes at different times

receive different sentences because of changes in sentencing policy. See


                                           2                                    19-50101
McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991).

      AFFIRMED.




                                       3                   19-50101
