     Case: 09-20782     Document: 00511197757          Page: 1    Date Filed: 08/09/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 9, 2010
                                     No. 09-20782
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ORLANDO ROBERTO ARIAS MARTINEZ, also known as Arias Orlando, also
known as Orlando Arias, also known as Orlando Arias Martinez, also known as
Orlando Martinez Arias,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-376-1


Before D EMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Orlando Roberto Arias Martinez pleaded guilty to illegal presence in the
United States following deportation after conviction for an aggravated felony and
was sentenced to 72 months of imprisonment. The calculation of his guidelines
sentencing range of 70 to 87 months included a 16-level enhancement under




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-20782

U.S.S.G. § 2L1.2 because his prior deportation followed a Texas conviction for
the manufacture/delivery of cocaine.
      Martinez asserts that his sentence violates the Eighth Amendment’s
guarantee against cruel and unusual punishment. Because he did not raise this
claim in the district court, we review it for plain error. See United States v.
Martinez, 496 F.3d 387, 389 (5th Cir. 2007). A six-year sentence for a second
illegal reentry offense by a defendant with a prior felony conviction for
manufacture/delivery of cocaine and several other convictions is not grossly
disproportionate to the crime. See Rummel v. Estelle, 445 U.S. 263, 284-85
(1980); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993).
      Next, Martinez contends that his sentence violates the Constitution’s
guarantee of equal protection, arguing that there is a wide disparity of sentences
between those who receive the 16-level enhancement under § 2L1.2 and similar
offenders who lack a prior aggravated felony conviction. We review this newly
raised claim for plain error. See Martinez, 496 F.3d at 389.
      “The essence of an equal protection claim is that other persons similarly
situated as is the claimant unfairly enjoy benefits that he does not or escape
burdens to which he is subjected.” United States v. Cronn, 717 F.2d 164, 169
(5th Cir. 1983).    Martinez fails to show how an alien who was previously
deported following conviction for an aggravated felony is similarly situated to an
alien without a prior aggravated felony conviction or to any other offender who
has committed an offense that has a lower offense level.            The 16-level
enhancement does not violate the guarantee of equal protection because it
“treat[s] all persons with aggravated felonies who commit this crime equally.”
Cardenas-Alvarez, 987 F.2d at 1134.
      Martinez also challenges the reasonableness of his sentence. He asserts
that the district court should have considered his argument at sentencing that
illegal aliens serve harsher sentences than United States citizens. However,
nothing in the record suggests that the district court neglected to consider the

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                                 No. 09-20782

argument; the court listened to the argument during the sentencing hearing and
stated specifically that it had “considered the submissions and arguments made”
before it announced the sentence.
      He also contends that the illegal reentry Guideline, U.S.S.G. § 2L1.2,
improperly double-counted his prior drug conviction to determine his offense
level instead of relying upon empirical data.      He asserts that this double-
counting was particularly unreasonable in his case because his prior conviction
was not a violent crime, yet he received the same enhancement received by
offenders whose prior offenses were violent.      He further contends that his
personal characteristics weighed in favor of a lighter sentence because he was
unaware of the stiff penalty he would face for reentering the United States since
this was his first prosecution for an immigration offense. Because Martinez did
not raise these objections in the district court, review is for plain error. See
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
      Martinez’s empirical data/double-counting challenge to the 16-level
enhancement under § 2L1.2 is foreclosed by our precedent. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). The possibility that the 16-level enhancement
could lead to an unjust sentence, “a persistent possibility under any system of
sentencing,” does not affect the presumption of reasonableness that attaches to
guidelines sentences under § 2L1.2.      Duarte, 569 F.3d at 530.     Martinez’s
argument that he was unaware of the significant penalty for reentering the
United States when he committed the offense does not rebut the presumption.
He cites nothing to suggest that his ignorance of the law was a factor that should
have received substantial weight during sentencing. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). In sum,
he fails to show that the district court committed a clear or obvious error in



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sentencing him within a properly calculated guidelines range and thus fails to
establish plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      The judgment of the district court is AFFIRMED.




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