                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 25 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50024

              Plaintiff-Appellee,                D.C. No. 3:15-cr-02244-WQH-1

 v.
                                                 MEMORANDUM*
FERNANDO CRUZ-MERCADO,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                           Submitted January 12, 2017**
                              Pasadena, California

Before:      TASHIMA, TALLMAN, and FRIEDLAND, Circuit Judges.

      Fernando Cruz-Mercado appeals his sentence for illegally reentering the

United States in violation of 8 U.S.C. § 1326. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      1.     Cruz-Mercado challenges his forty-month, within-Guidelines sentence

as substantively unreasonable on two grounds.

             a.     First, he argues that the sentence does not account for the fact

that this was his first immigration offense or that his longest previous sentence was

only one year. This argument mischaracterizes the reasoning of the district court.

The record shows that the district court fully considered all of the facts relevant to

the 18 U.S.C. § 3553(a) factors, including Cruz-Mercado’s prior sentences and

lack of previous immigration offenses. These mitigating facts had to be balanced

against Cruz-Mercado’s long criminal history and the risk posed to the public by

his repeated drunk driving. The district court’s weighing of the § 3553(a) factors

was within its discretion.

             b.     Cruz-Mercado also contends that his sentence is substantively

unreasonable due to the application of a 12-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(B). The enhancement was applied as a result of Cruz-Mercado’s

past conviction for drug trafficking. Cruz-Mercado argues that the full

enhancement should not have been applied because Cruz-Mercado trafficked in

marijuana rather than other drugs that he claims are more dangerous. Because

Cruz-Mercado did not raise this argument below, we review for plain error. United

States v. Vargem, 747 F.3d 724, 730 (9th Cir. 2014).


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      Marijuana is classified as a Schedule I controlled substance. 21 U.S.C.

§ 812(c)(10). Cruz-Mercado identifies no legal support for the argument that a

district judge should treat marijuana trafficking less severely than trafficking in any

other Schedule I drug. Cruz-Mercado thus cannot demonstrate that the application

of the 12-level enhancement was error, much less that such error was “plain.”

      Cruz-Mercado’s sentence is therefore not substantively unreasonable.

      2.     Cruz-Mercado next challenges the constitutionality of

§ 2L1.2(b)(1)(B) under the Equal Protection component of the Fifth Amendment

because the Guidelines treat marijuana trafficking the same as other types of drug

trafficking. Because Cruz-Mercado did not challenge the constitutionality of

§ 2L1.2(b)(1)(B) in the district court, his challenge is subject to plain error review.

Vargem, 747 F.3d at 730.

      “When the Commission enacts Guidelines treating one class of offenders

differently from another, equal protection generally requires that the classification

be ‘rationally related to a legitimate government interest.’” United States v.

Navarro, 800 F.3d 1104, 1113 (9th Cir. 2001) (quoting United States v. Ruiz-

Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007)). The “burden falls on the party

seeking to disprove the rationality of the relationship between the classification and

the purpose.” Id. (quoting Ruiz-Chairez, 493 F.3d at 1091). Cruz-Mercado has not


                                           3
carried his burden of disproving every rational basis for treating marijuana

trafficking the same as other drug trafficking under § 2L1.2(b)(1)(B). As this

Court has previously held, § 2L1.2 is rationally related to the legitimate

governmental interest of “deterring illegal reentry by those who have committed

drug-related and violent crimes.” Ruiz-Chairez, 493 F.3d at 1091. Cruz-Mercado

has not demonstrated that § 2L1.2(b)(1)(B)’s treatment of marijuana traffickers is

not rationally related to this interest. Given that there is no legal support for the

argument that a district judge should treat marijuana trafficking differently from

other types of trafficking, the district court’s failure sua sponte to invent such a

rule cannot be plain error.

      3.     Finally, Cruz-Mercado challenges the constitutionality of 8 U.S.C.

§ 1326(b). But as Cruz-Mercado concedes, this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v.

Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (noting “that Almendarez-

Torres is binding unless it is expressly overruled by the Supreme Court”).

                                       •   !     •

      For the foregoing reasons, Cruz-Mercado’s sentence is AFFIRMED.




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