The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 12, 2008
No. 08-11126 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00132-CR-ORL-22CJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHAD EUGENE MASTERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 12, 2008)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Chad Eugene Masters appeals his 15-month sentence, imposed after he pled
guilty to one count of conspiracy to commit marriage fraud, establish a
commercial enterprise to evade immigration laws, and make false statements on
immigration documents, in violation of 18 U.S.C. § 371; one count of immigration
fraud, in violation of 8 U.S.C. § 1325(d); and three counts of marriage fraud, in
violation of 8 U.S.C. § 1325(c). On appeal, Masters contends the district court
erred by enhancing his offense level by three levels under U.S.S.G. § 3B1.1(b)
because he never managed, supervised, or exercised control over anyone involved
in the conspiracy. Masters also claims U.S.S.G. § 2L2.1 is unconstitutional under
the Equal Protection Clause because it treats United States citizens more harshly
than aliens who commit the same offense, without justification. After a review of
the record and the parties’ briefs, we discern no reversible error.
I. AGGRAVATING ROLE ENHANCEMENT
We review a district court’s determination of a defendant’s role in an
offense for clear error. United States v. Njau, 386 F.3d 1039, 1041 (11th Cir.
2004). “[T]he ultimate determination of role in the offense is . . . a fundamentally
factual determination entitled to due deference . . . .” United States v. Rodriguez
De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc) (addressing a role
reduction under U.S.S.G. § 3B1.2). “The government bears the burden of proving
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by a preponderance of the evidence that the defendant had an aggravating role in
the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).
“The findings of fact of the sentencing court may be based on evidence heard
during trial, facts admitted by a defendant’s plea of guilty, undisputed statements
in the presentence report, or evidence presented at the sentencing hearing.”
United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).
Section 3B1.1(b) of the Sentencing Guidelines provides, “If the defendant
was a manager or supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise extensive, increase by
3 levels.” The commentary elaborates, “To qualify for an adjustment under this
section, the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.” U.S.S.G. § 3B1.1, comment. (n.2).
A “participant” is “a person who is criminally responsible for the commission of
the offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment.
(n.1).
The district court did not clearly err in enhancing Masters’ base offense
level based on his role as a manager or supervisor under U.S.S.G. § 3B1.1(b).
Masters does not dispute the fact that the fraudulent marriage conspiracy involved
five or more participants, and the record supports the conclusion he managed or
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supervised at least one participant. Masters concedes he recruited at least three
individuals to join the conspiracy. He paid the individuals he brought into the
conspiracy with money he received from Natalia Humm. Masters also drove
participants to the courthouse, where they would obtain their marriage licenses,
and back to Humm’s office to get married. The record supports the finding that
Masters informed those he recruited about the process of entering a fraudulent
marriage and how to get paid for doing it, and Masters was paid for his
recruitment activities. Because Masters recruited individuals into the conspiracy,
described the process to them, paid them for their participation, helped facilitate
their commission of the offense, and was paid for his role in the conspiracy, the
district court could find he managed or supervised at least one participant in the
conspiracy. Thus, the court did not clearly err in assessing a role enhancement
pursuant to U.S.S.G. § 3B1.1(b).
II. CONSTITUTIONALITY OF U.S.S.G. § 2L2.1
We review de novo a district court’s determination that a provision of the
Sentencing Guidelines is constitutional. United States v. Pressley, 345 F.3d 1205,
1209 (11th Cir. 2003).
Under § 2L2.1 of the Sentencing Guidelines, a United States citizen
convicted of “Fraudulent Marriage to Assist Alien to Evade Immigration Law”
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shall have a base offense level of 11. U.S.S.G. § 2L2.1(a). The base offense level
is to be decreased by three “[i]f the offense was committed other than for profit . . .
.” U.S.S.G. § 2L2.1(b)(1). Section 2L2.2 of the Sentencing Guidelines provides
an alien convicted of “Fraudulent Marriage by Alien to Evade Immigration Law”
shall have a base offense level of 8. U.S.S.G. § 2L2.2(a).
“[C]ongressional classifications based on alienage are subject to rational
basis review.” United States v. Ferreira, 275 F.3d 1020, 1025 (11th Cir. 2001)
(emphasis omitted). “Congress can pass laws regulating the conduct of
non-citizens within the United States, and those laws do not violate equal
protection so long as they are rationally related to a legitimate government
interest.” Id. We have applied the rational basis test to a challenge that a
provision of the Sentencing Guidelines violated the Equal Protection Clause when
it treated individuals differently based on their alienage. United States v. Adeleke,
968 F.2d 1159, 1160-61 (11th Cir. 1992).
We apply a two-step process to determine whether the rational basis
standard is met:
The first step in determining whether legislation survives
rational-basis scrutiny is identifying a legitimate government purpose
– a goal – which the enacting government body could have been
pursuing. The actual motivations of the enacting governmental body
are entirely irrelevant . . . . The second step of rational-basis scrutiny
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asks whether a rational basis exists for the enacting governmental
body to believe that the legislation would further the hypothesized
purpose. The proper inquiry is concerned with the existence of a
conceivably rational basis, not whether that basis was actually
considered by the legislative body. As long as reasons for the
legislative classification may have been considered to be true, and the
relationship between the classification and the goal is not so
attenuated as to render the distinction arbitrary or irrational, the
legislation survives rational-basis scrutiny.
Ferreira, 275 F.3d at 1026 (quotation omitted) (emphasis in original). Under
rational basis review, “a legislative choice is not subject to courtroom fact-finding
and may be based on rational speculation unsupported by evidence or empirical
data.” F.C.C. v. Beach Commc’ns, Inc., 113 S.Ct. 2096, 2102 (1993). “[T]hose
attacking the rationality of the legislative classification have the burden to
negative every conceivable basis which might support it.” Id. (quotations and
citation omitted).
Masters has not shown U.S.S.G. § 2L2.1 to be unconstitutional. Instead of
negating every potential reason the Sentencing Commission could have had for
treating United States citizens and aliens differently in §§ 2L2.1 and 2L2.2,
Masters actually suggests a rational basis for the different treatment: the
Commission could have concluded some United States citizens convicted of
helping aliens evade immigration law by committing marriage fraud deserved
harsher punishment than the aliens involved, since these citizens were seeking to
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make money by “taking advantage of someone’s desperation.” Indeed, this
hypothetical justification is supported by the Guidelines themselves: U.S.S.G. §
2L2.1(b)(1) provides for a three-level reduction if the citizen’s “offense was
committed other than for profit,” which operates to equalize a citizen’s offense
level with that of an alien when the citizen lacks a profit motivation. Masters’
hypothetical justification and the Guidelines themselves show the Sentencing
Commission rationally could have concluded a United States citizen who engaged
in immigration marriage fraud to make money was more culpable and deserving of
greater punishment than an alien who was merely seeking to live and work in the
United States. Thus, Masters has failed to meet his burden of showing U.S.S.G. §
2L2.1 is unconstitutional, since he has not demonstrated it lacks a rational basis.
AFFIRMED.
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