                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           SEPT 12, 2008
                            No. 08-11126                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

               D. C. Docket No. 07-00132-CR-ORL-22CJK



UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

CHAD EUGENE MASTERS,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                         (September 12, 2008)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Chad Eugene Masters appeals his 15-month sentence, imposed after he pled

guilty to one count of conspiracy to commit marriage fraud, establish a

commercial enterprise to evade immigration laws, and make false statements on

immigration documents, in violation of 18 U.S.C. § 371; one count of immigration

fraud, in violation of 8 U.S.C. § 1325(d); and three counts of marriage fraud, in

violation of 8 U.S.C. § 1325(c). On appeal, Masters contends the district court

erred by enhancing his offense level by three levels under U.S.S.G. § 3B1.1(b)

because he never managed, supervised, or exercised control over anyone involved

in the conspiracy. Masters also claims U.S.S.G. § 2L2.1 is unconstitutional under

the Equal Protection Clause because it treats United States citizens more harshly

than aliens who commit the same offense, without justification. After a review of

the record and the parties’ briefs, we discern no reversible error.

                  I. AGGRAVATING ROLE ENHANCEMENT

       We review a district court’s determination of a defendant’s role in an

offense for clear error. United States v. Njau, 386 F.3d 1039, 1041 (11th Cir.

2004). “[T]he ultimate determination of role in the offense is . . . a fundamentally

factual determination entitled to due deference . . . .” United States v. Rodriguez

De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc) (addressing a role

reduction under U.S.S.G. § 3B1.2). “The government bears the burden of proving

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by a preponderance of the evidence that the defendant had an aggravating role in

the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).

“The findings of fact of the sentencing court may be based on evidence heard

during trial, facts admitted by a defendant’s plea of guilty, undisputed statements

in the presentence report, or evidence presented at the sentencing hearing.”

United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).

         Section 3B1.1(b) of the Sentencing Guidelines provides, “If the defendant

was a manager or supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise extensive, increase by

3 levels.” The commentary elaborates, “To qualify for an adjustment under this

section, the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.” U.S.S.G. § 3B1.1, comment. (n.2).

A “participant” is “a person who is criminally responsible for the commission of

the offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment.

(n.1).

         The district court did not clearly err in enhancing Masters’ base offense

level based on his role as a manager or supervisor under U.S.S.G. § 3B1.1(b).

Masters does not dispute the fact that the fraudulent marriage conspiracy involved

five or more participants, and the record supports the conclusion he managed or

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supervised at least one participant. Masters concedes he recruited at least three

individuals to join the conspiracy. He paid the individuals he brought into the

conspiracy with money he received from Natalia Humm. Masters also drove

participants to the courthouse, where they would obtain their marriage licenses,

and back to Humm’s office to get married. The record supports the finding that

Masters informed those he recruited about the process of entering a fraudulent

marriage and how to get paid for doing it, and Masters was paid for his

recruitment activities. Because Masters recruited individuals into the conspiracy,

described the process to them, paid them for their participation, helped facilitate

their commission of the offense, and was paid for his role in the conspiracy, the

district court could find he managed or supervised at least one participant in the

conspiracy. Thus, the court did not clearly err in assessing a role enhancement

pursuant to U.S.S.G. § 3B1.1(b).

                II. CONSTITUTIONALITY OF U.S.S.G. § 2L2.1

      We review de novo a district court’s determination that a provision of the

Sentencing Guidelines is constitutional. United States v. Pressley, 345 F.3d 1205,

1209 (11th Cir. 2003).

      Under § 2L2.1 of the Sentencing Guidelines, a United States citizen

convicted of “Fraudulent Marriage to Assist Alien to Evade Immigration Law”

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shall have a base offense level of 11. U.S.S.G. § 2L2.1(a). The base offense level

is to be decreased by three “[i]f the offense was committed other than for profit . . .

.” U.S.S.G. § 2L2.1(b)(1). Section 2L2.2 of the Sentencing Guidelines provides

an alien convicted of “Fraudulent Marriage by Alien to Evade Immigration Law”

shall have a base offense level of 8. U.S.S.G. § 2L2.2(a).

      “[C]ongressional classifications based on alienage are subject to rational

basis review.” United States v. Ferreira, 275 F.3d 1020, 1025 (11th Cir. 2001)

(emphasis omitted). “Congress can pass laws regulating the conduct of

non-citizens within the United States, and those laws do not violate equal

protection so long as they are rationally related to a legitimate government

interest.” Id. We have applied the rational basis test to a challenge that a

provision of the Sentencing Guidelines violated the Equal Protection Clause when

it treated individuals differently based on their alienage. United States v. Adeleke,

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

      We apply a two-step process to determine whether the rational basis

standard is met:

      The first step in determining whether legislation survives
      rational-basis scrutiny is identifying a legitimate government purpose
      – a goal – which the enacting government body could have been
      pursuing. The actual motivations of the enacting governmental body
      are entirely irrelevant . . . . The second step of rational-basis scrutiny

                                           5
      asks whether a rational basis exists for the enacting governmental
      body to believe that the legislation would further the hypothesized
      purpose. The proper inquiry is concerned with the existence of a
      conceivably rational basis, not whether that basis was actually
      considered by the legislative body. As long as reasons for the
      legislative classification may have been considered to be true, and the
      relationship between the classification and the goal is not so
      attenuated as to render the distinction arbitrary or irrational, the
      legislation survives rational-basis scrutiny.

Ferreira, 275 F.3d at 1026 (quotation omitted) (emphasis in original). Under

rational basis review, “a legislative choice is not subject to courtroom fact-finding

and may be based on rational speculation unsupported by evidence or empirical

data.” F.C.C. v. Beach Commc’ns, Inc., 113 S.Ct. 2096, 2102 (1993). “[T]hose

attacking the rationality of the legislative classification have the burden to

negative every conceivable basis which might support it.” Id. (quotations and

citation omitted).

      Masters has not shown U.S.S.G. § 2L2.1 to be unconstitutional. Instead of

negating every potential reason the Sentencing Commission could have had for

treating United States citizens and aliens differently in §§ 2L2.1 and 2L2.2,

Masters actually suggests a rational basis for the different treatment: the

Commission could have concluded some United States citizens convicted of

helping aliens evade immigration law by committing marriage fraud deserved

harsher punishment than the aliens involved, since these citizens were seeking to

                                           6
make money by “taking advantage of someone’s desperation.” Indeed, this

hypothetical justification is supported by the Guidelines themselves: U.S.S.G. §

2L2.1(b)(1) provides for a three-level reduction if the citizen’s “offense was

committed other than for profit,” which operates to equalize a citizen’s offense

level with that of an alien when the citizen lacks a profit motivation. Masters’

hypothetical justification and the Guidelines themselves show the Sentencing

Commission rationally could have concluded a United States citizen who engaged

in immigration marriage fraud to make money was more culpable and deserving of

greater punishment than an alien who was merely seeking to live and work in the

United States. Thus, Masters has failed to meet his burden of showing U.S.S.G. §

2L2.1 is unconstitutional, since he has not demonstrated it lacks a rational basis.

      AFFIRMED.




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