United States of America v. Fernando Cruz-Mercado

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO CRUZ-MERCADO,
Defendant-Appellant.
No. 16-50024
D.C. No. 3:15-cr-02244-WQH-1
MEMORANDUM*
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.
FILED
JAN 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 of 4 --

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).
2

-- 2 of 4 --

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

-- 3 of 4 --

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.
4

-- 4 of 4 --