                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5195


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FIDEL ALEJO-PENA, a/k/a Patricio Martinez Pena,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:11-cr-00150-H-1)


Submitted:   May 24, 2012                     Decided:   June 8, 2012


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

                 Fidel    Alejo-Pena          appeals           his      seventy-seven-month

sentence for illegal reentry after deportation by an aggravated

felon,      in    violation       of    8    U.S.C.    §        1326(a),          (b)(2)       (2006).

Finding no error, we affirm.

                 On appeal, Alejo-Pena challenges the imposition of a

sixteen-level enhancement pursuant to U.S. Sentencing Guidelines

Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2011) on equal protection

grounds.           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).                                  “To succeed

on     an    equal       protection         claim,         a     [claimant]             must     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

                                                2
1089,     1091   (9th      Cir.     2007)       (addressing      equal     protection

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

omitted); see United States v. D’Anjou, 16 F.3d 604, 612 (4th

Cir. 1994) (applying rational basis test to equal protection

challenge to former version of USSG § 2D1.1(c)).                    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) (citing 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[.]”      Heller    v.   Doe,     509     U.S.   312,   320    (1993)     (internal

quotation marks omitted).

            We have reviewed Alejo-Pena’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      (11th    Cir.    1992)

(rejecting equal protection argument that § 2L1.2 effectively

punishes illegal reentrants, and not citizens, twice for the

                                            3
same crime).      Moreover, the burden is on Alejo-Pena to negate

“every     conceivable     basis”        which     might     support      the

enhancement, see Heller, 509 U.S. at 320, and Alejo-Pena has

failed to meet this burden.

           Accordingly,    we   affirm    the    criminal   judgment.     We

dispense   with    oral   argument   because      the   facts   and     legal

contentions are adequately expressed in the materials before the

court and argument would not aid the decisional process.


                                                                  AFFIRMED




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