UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50366 Plaintiff-Appellee, D.C. No. v. 3:19-cr-00735- AJB-1 EDUVIGES AYALA-BELLO, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 19-50368 Plaintiff-Appellee, D.C. No. v. 3:19-cr-00735- AJB-2 WALTER GERMAN VELEZ- GONZALEZ, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted December 10, 2020 Pasadena, California

Filed April 26, 2021 2 UNITED STATES V. AYALA-BELLO

Before: Paul J. Watford, Amul R. Thapar, * and Daniel P. Collins, Circuit Judges.

Opinion by Judge Thapar; Concurrence by Judge Watford

SUMMARY **

Criminal Law

The panel affirmed two defendants’ convictions, following a bench trial, for attempting to enter the United States illegally in violation of 8 U.S.C. § 1325(a)(1).

The defendants argued that the government violated their right to equal protection by prosecuting them for first-time illegal entry, a petty offense, on the normal criminal docket rather than through the federal courts’ Central Violations Bureau (CVB) process under which defendants charged with petty offenses generally receive lighter punishment.

The panel held that the government does not violate equal protection by prosecuting illegal border crossings on the normal criminal docket.

The panel held that the policy here does not discriminate against a protected class or infringe a fundamental right. The

* The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. AYALA-BELLO 3 panel wrote that the defendants give no evidence to refute the government’s position that it makes docketing assignments based solely on the charged offense, which is not impermissible discrimination. And even if the defendants had shown that the government makes docketing assignments based on the defendant’s citizenship status, at most the rational basis test would apply because federal classifications based on alienage receive rational basis review.

Applying the rational basis test, the panel concluded that the government’s decision to prosecute first-time illegal entry separately from other petty offenses passes constitutional muster. The panel saw at least two rational bases: that the government has a legitimate interest in controlling our borders, and that the government has a legitimate interest in managing its prosecutorial resources. The panel concluded that the defendants did not carry their burden to negate every conceivable basis which might support the government’s decision to prosecute them on the normal criminal docket.

Concurring in the judgment, Judge Watford agreed that the government did not violate the defendants’ equal protection rights by prosecuting them for illegal entry on the regular criminal docket rather than through the CVB process, but in his view, the government’s actions are justified solely because of the particular characteristics of the class of offenders at issue and the particular features of these two different criminal processes. He agreed that rational basis review applies here,