                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4094


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIO ALVAREZ-ALDANA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00078-D-1)


Submitted:   January 30, 2014              Decided:   February 12, 2014


Before WYNN and    FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            In 2002 Mario Alvarez-Aldana entered no contest pleas

in North Carolina state court to two counts of taking indecent

liberties with a minor.                  In October 2012 Alvarez-Aldana pled

guilty to illegal reentry of an aggravated felon, under 8 U.S.C.

§ 1326(a), (b)(2) (2012), and was sentenced to forty-one months

of     imprisonment,         the       bottom       of   his     advisory        Sentencing

Guidelines range.

            On    appeal,          Alvarez-Aldana           contests       his   Sentencing

Guidelines range enhancement of sixteen levels because his North

Carolina convictions for taking indecent liberties with a child

were    considered       crimes         of     violence      under        U.S.   Sentencing

Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2012), arguing

that the enhancement as applied to non-citizens is a violation

of equal protection.               In assessing a challenge to a district

court’s application of the Sentencing Guidelines, we review the

court’s    factual        findings           for    clear      error      and    its   legal

conclusions de novo.            United States v. Sosa–Carabantes, 561 F.3d

256, 259 (4th Cir. 2009).

            The        Equal       Protection        Clause      of       the    Fourteenth

Amendment prohibits “governmental decisionmakers from treating

differently persons who are in all relevant respects alike.”

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citation omitted).

“To    succeed    on    an     equal    protection       claim,       a   [claimant]    must

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first    demonstrate          that    he     has       been    treated        differently         from

others with whom he is similarly situated and that the unequal

treatment        was     the        result        of     intentional            or       purposeful

discrimination.”          Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001).        If a claimant succeeds in making such a showing,

the   court      must    determine         whether        the    disparity          is    justified

under the requisite level of scrutiny.                          Id.

              The Sentencing Guidelines may properly be challenged

on equal protection grounds, and the “relevant test is whether

the     classification          is       rationally           related     to        a    legitimate

government interest.”                 United States v. Ruiz-Chairez, 493 F.3d

1089,     1091     (9th       Cir.        2007)        (addressing        equal          protection

challenge     to    USSG       §    2L1.2(b)(1)(A))             (citations          and    internal

quotation omitted); see United States v. D’Anjou, 16 F.3d 604,

612 (4th Cir. 1994) (applying rational basis test to Guidelines

equal protection challenge).                       Rational basis review does not

require the court to identify Congress’ actual rationale for the

distinction.            The        statute    will        be     upheld        if       “there     are

‘plausible       reasons’          for     Congress’          action.”          FCC       v.     Beach

Commc’ns,     Inc.,      508       U.S.    307,        313-14    (1993)        (quoting        United

States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).                                          The

burden is on the one raising the equal protection challenge to

negate    “every        conceivable          basis       which        might    support         it[.]”



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Heller v. Doe, 509 U.S. 312, 320 (1993) (citation and internal

quotation omitted).

            We have reviewed Alvarez-Aldana’s arguments on appeal

and conclude that he has failed to establish any violation under

the Equal Protection Clause.          See Ruiz-Chairez, 493 F.3d at 1091

(denying equal protection challenge to § 2L1.2 on rational basis

review,    finding      that    “enhancement        serves      the    legitimate

government interest of deterring illegal reentry by those who

have committed drug-related and violent crimes”); United States

v. Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992) (rejecting

equal    protection     argument   that      §   2L1.2    effectively    punishes

illegal reentrants, and not citizens, twice for the same crime).

Moreover, the burden is on Alvarez-Aldana to negate any basis

which might support the enhancement, see Heller, 509 U.S. at

320, and he has failed to meet this burden.                     See also United

States    v.    Perez-Perez,    737     F.3d     950,    952   (4th    Cir.   2013)

(finding that taking indecent liberties with a minor under N.C.

Gen. Stat. § 14–202.1(a) qualified categorically as sexual abuse

of a minor and therefore was a crime of violence within the

meaning of USSG § 2L1.2(b)(1)(A)).

            Accordingly, we affirm Alvarez-Aldana’s sentence.                   We

dispense       with   oral   argument     because       the    facts   and    legal




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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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