     Case: 18-11436      Document: 00515129525         Page: 1    Date Filed: 09/24/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-11436                         United States Court of Appeals
                                                                                  Fifth Circuit
                                  Summary Calendar                              FILED
                                                                        September 24, 2019

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARCOS CORTEZ-ROGEL,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:18-CR-89-1


Before DAVIS, SMITH and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Marcos Cortez-Rogel pleaded guilty to illegal reentry after deportation
and was sentenced within the guidelines range to 46 months of imprisonment
and two years of supervised release. On appeal, Cortez-Rogel argues that the
district court failed to adequately explain his sentence because it did not
respond to his arguments for a lesser sentence, which he asserts were factually
supported and equitably compelling.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-11436

      Cortez-Rogel submits that, due to his argument at sentencing in favor of
a lesser sentence, no objection should be needed to preserve this issue, or,
alternatively, this court’s strict application of the plain-error standard of
review should be mitigated. However, he acknowledges this court’s precedent
requiring   a   specific   objection   to   preserve   this    issue   for   further
review. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). In
light of this precedent, this issue is reviewed for plain error. See id. To
establish plain error, a defendant must show a forfeited error that is clear or
obvious and that the error affects his substantial rights. 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, and that discretion “ought to be exercised
only if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks, brackets, and citation
omitted).
      The district court adopted the presentence report’s factual findings and
guidelines calculations; heard from defense counsel, Cortez-Rogel, and
witnesses on Cortez-Rogel’s behalf; and stated that it had primarily considered
“the conduct admitted in the Factual Resume” and the 18 U.S.C. § 3553 factors.
The written statement of reasons provided further reasons for the sentence.
The district court’s reasons were adequate, even if it “might have said more.”
Rita v. United States, 551 U.S. 338, 359 (2007). The district court’s failure to
provide more specific reasons for rejecting Cortez-Rogel’s arguments for a
lesser sentence did not constitute clear or obvious error. See Puckett, 556 U.S.
at 135; United States v. Camero-Renobato, 670 F.3d 633, 635 (5th Cir. 2012);
United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Additionally,
Cortez-Rogel fails to demonstrate an effect on his substantial rights because
he has not shown a reasonable probability that a more thorough explanation



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                                No. 18-11436

would have resulted in a lower sentence. See Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904-05 (2018); Puckett, 556 U.S. at 135; United States v.
Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009).
      Cortez-Rogel also argues that (1) the district court’s enhancement of his
sentence to more than two years in prison and more than one year of
supervised release under 18 U.S.C. § 1326(b)(1) was unconstitutional because
the § 1326(b)(1) enhancement was treated as a sentencing factor rather than
as an element of a separate offense; and (2) his guilty plea was involuntary
because the district court failed to inform him that the prior felony provision
of § 1326(b)(1) stated an essential element of his illegal reentry offense that
the Government was required to prove beyond a reasonable doubt.               He
correctly concedes that the issue whether a sentencing enhancement under
§ 1326(b) must be alleged in the indictment and proved to a jury is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises
these arguments to preserve them for possible Supreme Court review. See
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
      In light of the foregoing, the district court’s judgment is AFFIRMED.




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