     Case: 14-40999      Document: 00513202991         Page: 1    Date Filed: 09/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 14-40999                                   FILED
                                  Summary Calendar                         September 22, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAUL RIOS-LUNA, also known as Agustin Lopez-Mijangos,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-266


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Saul Rios-Luna (Rios) pleaded guilty to being an alien unlawfully
present in the United States after a previous deportation in violation of 8
U.S.C. § 1326. The district court imposed a within-guidelines sentence of 41
months of imprisonment.
       Initially, Rios argues that the district court’s application of the 16-level
offense enhancement provision under U.S.S.G. § 2L1.2(b)(1)(A)(i) violates the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40999    Document: 00513202991       Page: 2   Date Filed: 09/22/2015


                                 No. 14-40999

Constitution’s guarantee of equal protection because the Guideline: (1) uses
prior convictions to enhance the offense level; (2) lacks an empirical basis; (3)
results in excessive sentences as compared to sentences for more egregious
crimes; and (4) double-counts the prior conviction. However, the enhancement
of Rios’s sentence under § 2L1.2(b)(1)(A) did not violate his right to equal
protection of the law. See United States v. Cardenas-Alvarez, 987 F.2d 1129,
1134 (5th Cir. 1993). We have emphasized that the Sentencing Commission
intended, in singling out certain offenses under § 2L1.2 for significant
enhancement, to identify and to penalize those crimes that are violent or
forceful, or risk violence and the application of force. United States v. Zavala-
Montoya, 71 F. App’x 358, 361 (5th Cir. 2003). Moreover, we have consistently
rejected “double counting” arguments and arguments that § 2L1.2 results in
excessive sentences because it is not empirically based. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      In addition, Rios maintains that he should have been sentenced under
§ 1326(a) and that his sentence is unconstitutional because the conviction used
to enhance his sentence was not alleged in his indictment.               As Rios
acknowledges, his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998). See United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007).
      Finally, Rios argues that the enhancement provision of § 2L1.2 violates
his Eighth Amendment protection against cruel and unusual punishment.
However, his within-guidelines sentence is not grossly disproportionate to his
offense such that it violates the Eighth Amendment. See Cardenas-Alvarez,
987 F.2d at 1134.
      AFFIRMED.



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