
    UNITED STATES of America, Plaintiff—Appellee, v. Alfredo VIRGEN-ZARATE, Defendant—Appellant.
    No. 05-10230.
    D.C. No. CR-04-20042-RMW.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 5, 2006.
    Decided June 1, 2006.
    Shashi Hari Kewalramani, USSJ-Office of the U.S. Attorney, San Jose, CA, for Plaintiff-Appellee.
    Lara Vinnard, Office of the Federal Public Defender, San Jose, CA, for Defendant-Appellant.
    Before SILER, RAWLINSON, and BYBEE, Circuit Judges.
    
      
       The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation.
    
   MEMORANDUM

1. We reject Virgen-Zarate’s equal protection claim arising from the alleged disparate treatment under U.S.S.G. § 2L1.2 as compared with U.S.S.G. § 2K2.1, because Virgen-Zarate cannot show that he has been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (citation omitted).

2. We do not reach the merits of Virgen-Zarate’s sentencing claim because we lack jurisdiction to review the district court’s discretionary denial of a request for downward departure. See United States v. Romero, 293 F.3d 1120, 1126 (9th Cir. 2002).

AFFIRMED in part and DISMISSED in part. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
     