United States Court of Appeals

for the Fifth Circuit

No. 21-10659

United States of America, 

Plaintiff—Appellee,

versus

Fernando Valdez-Cejas, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CR-332-1

Before Stewart, Elrod, and Graves, Circuit Judges.

Per Curiam:*

Fernando Valdez-Cejas appeals the district court’s judgment

imposing a within-guidelines sentence of 87 months of imprisonment

following his guilty-plea conviction for being unlawfully present in the United 

States for the fourth time after being removed. We affirm.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 2, 2022

Lyle W. Cayce

Clerk

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I. FACTUAL & PROCEDURAL BACKGROUND

In February 2021, Valdez-Cejas pled guilty to being found unlawfully 

present in the United States following a prior removal in violation of 8 U.S.C. 

§ 1326. When law enforcement officials encountered him in October 2020, 

he admitted that he was removed to Mexico in February 2020 and that he 

was in the United States without permission. The Presentence Investigation 

Report (“PSR”) reflected that he had been sentenced in 2017 to 40 months 

in prison for illegal reentry following removal. His February 2020 removal 

was his fourth, and it took place just days after he was released from the 

custody of the Bureau of Prisons on the 2017 illegal-reentry case. His 2017 

illegal-reentry conviction received three criminal history points pursuant to 

U.S.S.G. § 4A1.1(a). See U.S.S.G. § 4A1.1(a) (assigning three points for a 

prior prison sentence exceeding 13 months). It also increased his offense level 

by four levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). With a total offense 

level of 20 and his placement in Criminal History Category VI, Valdez-Cejas 

was subject to a within-guidelines imprisonment range of 70 to 87 months. 

Valdez-Cejas objected to the PSR because his 2017 conviction for 

illegal reentry was used both to increase his offense level and to increase his 

criminal history score. He argued that this resulted in his prior conviction 

being double counted for purposes of determining his advisory guidelines 

range. The district court overruled the objection and sentenced him to 87 

months of imprisonment to be followed by a three-year term of supervised 

release. Valdez-Cejas filed this appeal, arguing for the first time that the

application of U.S.S.G. § 2L1.2(b)(1)(A) to alien defendants, like himself, 

violates his right to equal protection. 

II. STANDARD OF REVIEW

Valdez-Cejas did not challenge his sentence on equal-protection 

grounds to the district court so we review the issue for plain error only. See

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United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007) (reviewing forfeited constitutional error in the sentencing context for plain error). To show 

plain error, he must establish an error that was clear or obvious and that affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, this court has the discretion to correct 

the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

III. DISCUSSION

“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.” United States v. Cronn, 717 F.2d 164, 

169 (5th Cir. 1983). In United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131, 

1134 (5th Cir. 1993), this court considered a direct criminal appeal in a § 1326 

case that involved an enhancement under § 2L1.2. Cardenas-Alvarez argued 

that the § 2L1.2 enhancement’s disproportionate effect on his sentence created an equal-protection violation. Id. at 1133–34. This court rejected the 

equal-protection challenge reasoning that “[t]he Supreme Court has upheld 

the constitutionality of the guidelines” which “were devised to and do treat 

[equally] all persons” who violate § 1326 and qualify for § 2L1.2 enhancements. Id. at 1134 (“In challenging his sentence, Cardenas raises essentially 

an equal protection argument. However, the guidelines were devised to and 

do treat all persons with aggravated felonies who commit this crime 

equally.”); accord United States v. Martinez, 477 F. App’x 248, 250 (5th Cir. 

2012) (per curiam) (unpublished) (“The application of the 16–level enhancement does not violate equal protection because it treats equally all persons 

with qualifying serious prior offenses who commit an illegal reentry offense.”).

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Valdez-Cejas acknowledges our holding in Cardenas-Alvarez but argues that Cardenas-Alvarez compared the treatment of the various aliens who 

were subject to the double-counting caused by § 2L1.2 enhancements based 

on prior convictions. According to Valdez-Cejas, the “correct class comparison is between aliens who are subjected to double counting of prior convictions in guideline calculations and United States citizens who are not subjected to the double counting of prior convictions in the calculation of their 

guideline range.” We disagree. Given the Cardenas-Alvarez panel’s equalprotection holding and the lack of any published authority supporting ValdezCejas’s argument, he cannot show that the district court plainly erred by applying the § 2L1.2 enhancement here.1 See Puckett, 556 U.S. at 135; United 

States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010).2

IV. CONCLUSION

For the foregoing reasons, the district court’s judgment is 

AFFIRMED.

1 The Eleventh Circuit has considered and rejected an argument that different 

§ 2L1.2 enhancements make an irrational distinction between aliens with prior felony 

convictions and citizens with prior felony convictions for equal-protection purposes. See

United States v. Osorto, 995 F.3d 801, 820–22 (11th Cir.), cert. denied, 142 S. Ct. 470 (2021). 

That court held that “the group of individuals arguably discriminated against by 

[§ 2L1.2’s] double-counting is not all noncitizens; it is the smaller subset of noncitizens 

who are unlawfully present in the United States and have committed at least one other 

qualifying violation.” Osorto, 995 F.3d at 820 (citing Cardenas-Alvarez, 987 F.2d at 1134).

2 We also reject Valdez-Cejas’s ancillary argument that § 2L1.2(b)(1)(A) violates 

Congress’s directive at 28 U.S.C. § 994(d) that the Sentencing Commission is prohibited 

from considering national origin in promulgating the Guidelines. This court has held that 

“‘alienage’ and ‘national origin’ are not synonymous.” United States v. Nnanna, 7 F.3d 

420, 422 (5th Cir. 1993); see also Osorto, 995 F.3d at 822 (rejecting argument similar to that 

raised by Valdez-Cejas and explaining that alienage means not being a United States citizen, 

while national origin pertains to a person’s country of birth).

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