     Case: 13-20733       Document: 00512929256         Page: 1     Date Filed: 02/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                     No. 13-20733                                     FILED
                                   Summary Calendar                            February 6, 2015
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ELVIS MARINO MOSQUERA-VALOIS, also known as Jose Luis Vasquez, also
known as Wilbert Rodriguez Sejuelas, also known as Wilbert R. Sejuelas, also known
as Elvis Marino Mosquera, also known as Wilbert Rodriguez-Sejuelas, also known as
Jose L. Vasquez, also known as Elmer A. Alverez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-268-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Elvis Marino Mosquera-Valois challenges the sentence of 70-months’
imprisonment imposed following his guilty-plea conviction for illegal reentry
into the United States after deportation, following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He contends


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
     Case: 13-20733      Document: 00512929256      Page: 2   Date Filed: 02/06/2015


                                     No. 13-20733

the district court violated his Fifth and Eighth Amendment rights and imposed
a substantively unreasonable sentence by applying a 16-level enhancement,
pursuant to Sentencing Guideline § 2L1.2(b)(1)(A)(i) (“If the defendant
previously was deported, or unlawfully remained in the United States, after
. . . a drug trafficking offense for which the sentence imposed exceeded 13
months; . . . increase by 16 levels . . . .”).
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Because Mosquera did not raise these issues in district court, review is
only for plain error. E.g., United States v. Moreno-Florean, 542 F.3d 445, 448
(5th Cir. 2008). Under that standard, Mosquera must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id. For each issue, he fails to show a
clear or obvious error.
      The Eighth Amendment precludes the imposition of sentences that are
greatly disproportionate to the offenses because such sentences are cruel and
unusual. E.g., United States v. Thomas, 627 F.3d 146, 160 (5th Cir. 2010)
(citation and quotation marks omitted). In deciding whether a sentence is
unconstitutionally disproportionate, our court “makes a threshold comparison



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                                  No. 13-20733

of the gravity of the offense against the severity of the sentence”. Id. (citation
omitted). Unless the threshold comparison leads to an inference of gross
disproportionality, our court will not inquire further.        E.g., McGruder v.
Puckett, 954 F.2d 313, 316 (5th Cir. 1992). As a general matter, the Guidelines
are a “convincing objective indicator of proportionality”.       United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (citation and internal
quotation marks omitted).
      Mosquera’s sentence is within his advisory Guidelines-sentencing range.
Because he has not otherwise demonstrated a gross disproportionality between
the sentence and his offense, he has failed to show a clear or obvious Eighth
Amendment error. E.g., id.; United States v. Castillo, 294 F. App’x 855, 856
(5th Cir. 2008) (citations omitted).
      As for his Fifth Amendment due-process claim, Mosquera challenges the
court’s application of the 16-level enhancement without a hearing to ascertain
the particular facts of the prior offense on which the enhancement was based.
Because the court applied the enhancement consistently with Descamps v.
United States, 133 S. Ct. 2276, 2281 (2013), by basing the analysis on the
elements of the offense, rather than the underlying facts, Mosquera fails to
show a clear or obvious error affecting his substantial rights under the Fifth
Amendment. E.g., United States v. Teran-Salas, 767 F.3d 453, 458–59 (5th
Cir. 2014), petition for cert. filed (15 Dec. 2014) (No. 14-7593).
      Mosquera also contends his sentence is substantively unreasonable,
claiming the 16-level enhancement is inconsistent with the policies underlying
18 U.S.C. § 3553(a) (sentencing factors). Because Mosquera’s sentence was
within   the   advisory    Guidelines-sentencing      range,   the   sentence    is
presumptively reasonable. United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009).    At sentencing, the court considered Mosquera’s objections to the



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                                  No. 13-20733

Guideline-sentencing-range calculations in the presentence investigation
report, his request for a downward departure based on cultural assimilation,
and his allocution. Mosquera has not shown the district court failed to account
for a relevant factor, weighted too heavily an improper factor, or clearly erred
in weighing the various factors in setting the sentence. E.g., id. His claim thus
amounts to a disagreement with his sentence.            Moreover, as noted, a
presumption of reasonableness applies to his sentence. As with his other two
issues, he fails to show a clear or obvious error.
      AFFIRMED.




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