United States v. Juan Sepulveda-Martinez

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2024
• Docket: 22-10065
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10065

Plaintiff-Appellee, D.C. No. 4:16-cr-01284-CKJ-LCK-1 v.

JUAN LUIS SEPULVEDA-MARTINEZ, MEMORANDUM* AKA Oscar Hernandez-Espinoza, AKA Juan Luis Sepulveda Martinez,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 22-10071

Plaintiff-Appellee, D.C. No. 4:21-cr-02066-CKJ-LCK-1 v.

JUAN LUIS SEPULVEDA-MARTINEZ,

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted April 4, 2024**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision Phoenix, Arizona

Before: CLIFTON, BYBEE, and BADE, Circuit Judges.

Juan Luis Sepulveda-Martinez, a native and citizen of Mexico, was

convicted of violating 8 U.S.C. § 1326(a), Reentry of Removed Aliens, with

sentencing enhancements pursuant to 8 U.S.C. § 1326(b)(1). At the time of that

violation, he was on supervised release following a prior conviction for the same

offense, and the district court granted a petition to revoke that prior term of

supervised release. He was sentenced to consecutive terms of 40 months and 18

months for the conviction and revocation, respectively, resulting in a total term of

58 months. His appeals from the two judgments have been consolidated.

Sepulveda-Martinez challenges the Sentencing Guideline for Unlawfully

Entering or Remaining in the United States, U.S.S.G. § 2L1.2, as a violation of

equal protection and due process, arguing that it can only be applied to non-

citizens and therefore treats non-citizens qualitatively differently from citizens. He

also asserts for the first time on appeal that the district court committed plain error

by imposing consecutive terms and argues that his sentence is substantively

unreasonable.

We review the constitutionality of a Sentencing Guideline de novo. United

States v. Carson, 988 F.2d 80, 82 (9th Cir. 1993) (per curiam). When alleged errors

without oral argument. See Fed. R. App. P. 34(a)(2).

2 were not raised below, we review for plain error. United States v. Blinkinsop, 606

F.3d 1110, 1114 (9th Cir. 2010). In reviewing a district court’s sentence for

reasonableness, we assess whether the district court abused its discretion. United

States v. Cate, 971 F.3d 1054, 1057 (9th Cir. 2020). We have jurisdiction to review

the district court’s judgments under 28 U.S.C. § 1291, and we affirm.

1. Sepulveda-Martinez’s constitutional challenges to the sentencing

guidelines are foreclosed by our precedents. In United States v. Ruiz-Chairez, 493

F.3d 1089, 1092 (9th Cir. 2007), we held that the relevant guideline, §

2L1.2(b)(1)(A), did not violate equal protection because it bore a rational

relationship to a legitimate government purpose. Sepulveda-Martinez argues that a

different standard, heightened scrutiny, should apply. That does not permit us to

ignore the precedent, but even if we were to apply that standard, his challenge

would still fail. We held in United States v. Carrillo-Lopez, 68 F.4th 1133, 1154

(9th Cir. 2023), that 8 U.S.C. § 1326 did not violate equal protection as there was

no racial animus behind its passage. Sepulveda-Martinez does not offer any

persuasive evidence showing that the guideline enhancements related to § 1326

were enacted with a discriminatory intent or purpose. Thus, his equal protection

challenge fails. Sepulveda-Martinze’s due process challenge also fails. See United

States v. Fine, 975 F.2d 596, 604 (9th Cir. 1992) (en banc) (holding that in the

sentencing context, due process challenges are largely duplicative of equal

3 protection challenges).

2. The district court did not commit plain error by imposing consecutive

sentences and did not impose a sentence that was substantively unreasonable. The

Sentencing Commission’s commentary on U.S.S.G. § 7B1.3(f) recommends “that

any sentence of imprisonment for a criminal offense that is imposed after

revocation of probation or supervised release be run consecutively to any term of

imprisonment imposed upon revocation.” Moreover, the district court referenced

relevant factors in imposing the sentences, including “additional deterrence” and

“public protection[.]” See 18 U.S.C. § 3553(a). Finally, in United States v. Carty,

520 F.3d 984, 988 (9th Cir. 2008) (en banc), we “recognize[d] that a correctly

calculated Guidelines sentence will normally not be found unreasonable on

appeal.” Sepulveda-Martinez’s combined terms added up to 58 months, and that

duration falls within the acknowledged Guideline range of 51 to 63 months for the

recent conviction by itself. The sentences did not constitute an abuse of discretion.

AFFIRMED.