United States v. Salas-Rodriguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2002
• Docket: 01-40909
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40909 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO SALAS-RODRIGUEZ, also known as Javier Rodriguez-Rodriguez, also known as Enoc Lopez-Rodriguez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-134-1 -------------------- June 18, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Antonio Salas-Rodriguez ("Salas") appeals the 46-month

sentence imposed following his guilty plea, pursuant to a plea

agreement, to illegal reentry into the United States after

deportation following conviction of an aggravated felony, in

violation of 8 U.S.C. § 1326. Salas' plea agreement waived his

right to appeal his sentence except, inter alia, an "illegal"

sentence pursuant to 18 U.S.C. § 3742(a)(1). Salas' court-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40909 -2-

appointed counsel has not briefed the applicability of the

appeal-waiver provision. The Government does not seek to enforce

the appeal waiver. Salas' appellate brief asserts that his

sentence violated the Eighth Amendment and that the enhanced

penalties imposed pursuant to U.S.S.G. § 2L1.2 violate the Equal

Protection Clause because the sentencing guidelines treat

convicted-felon aliens differently from convicted-felon citizens.

Salas' Eighth Amendment argument is foreclosed by this

court's precedent. See United States v. Cardenas-Alvarez, 987

F.2d 1129, 1134 (5th Cir. 1993) (rejecting disproportionality

challenge to 100-month sentence for illegal reentry).

Salas' equal-protection claim is specious; aliens who are

convicted of illegally reentering the United States after

deportation following a felony conviction are not similarly

situated to United States citizens with prior felony convictions.

See United States v. Cronn, 717 F.2d 164, 169 (5th Cir. 1983)

("The essence of an equal protection claim is that other persons

similarly situated as is the claimant unfairly enjoy benefits

that he does not or escape burdens to which he is subjected.").

The § 2L1.2 enhancement provision does not violate equal

protection because it "treat[s] all persons with aggravated

felonies who commit this crime equally." Cardenas-Alvarez, 987

F.2d at 1134.

Although Salas' appellate arguments amount to a superficial

assertion that his sentence was "illegal" and therefore No. 01-40909 -3-

appealable under an exception to the appeal waiver, his claims of

illegality have no merit. This appeal is frivolous, and it is

DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.

Philip T. Cowan, Salas' attorney on appeal, is cautioned

that the filing of frivolous appeals may subject counsel to

sanctions, which may include not receiving payment for services

rendered and expenses incurred in the appeal. See United States

v. Gaitan, 171 F.3d 222, 222-24 (5th Cir. 1999).

APPEAL DISMISSED.