                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50033

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00884-H-1

  v.
                                                 MEMORANDUM *
JESUS MARROQUIN-FRIAS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                           Submitted February 10, 2010 **
                               Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, *** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
      Jesus Marroquin-Frias appeals his within-Guidelines, 51-month sentence for

illegal reentry into the United States in violation of 8 U.S.C. § 1326(a) & (b).

Because of his prior convictions for robbery and assault with a firearm, the district

court enhanced Marroquin’s base offense level by sixteen levels in accordance

with U.S.S.G. § 2L1.2(b)(1)(A)(ii). Marroquin argues his sentence is

unconstitutional and both procedurally and substantively unreasonable. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we remand for re-sentencing.

      We review challenges to the constitutionality of a sentence de novo, United

States v. Raygosa-Esparza, 566 F.3d 852, 854 (9th Cir. 2009); we review the

substantive and procedural reasonableness of a sentence for an abuse of discretion.

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). As an initial matter,

consistent with a number of our prior decisions, we reject Marroquin’s claims that

the prior conviction exception in Almendarez-Torres v. United States, 523 U.S. 224

(1998), has been implicitly invalidated and that the doctrine of constitutional

avoidance requires capping his sentence at two years.1 See, e.g., United States v.

Grisel, 488 F.3d 844, 846–47 (9th Cir. 2007) (en banc).




      1
        Marroquin concedes that these arguments are futile under current law and
raises this issue only to preserve it for Supreme Court review.

                                          2
      Next, Marroquin argues the district court failed to adequately respond to his

arguments at sentencing, thereby rendering his sentence procedurally unreasonable

under 18 U.S.C. § 3553(c). The district judge directly questioned Marroquin’s

counsel at sentencing regarding his arguments for a variance. The district judge

further explained that she had reviewed the information submitted by the parties

and had considered the Guidelines and the § 3553(a) factors in making her

sentencing determination. In a relatively simple case such as this, especially where

the judge imposed a Guidelines sentence, no further explanation was required. See

Rita v. United States, 551 U.S. 338, 356–58 (2007); Carty, 520 F.3d at 992.

      Finally, Marroquin argues his sentence is substantively unreasonable

because his qualifying crime-of-violence convictions are twenty-three years old

and he has no subsequent violent criminal history. We vacate Marroquin’s 51-

month sentence and remand this case to the district court to reconsider the weight

to be afforded Marroquin’s 23-year-old convictions in light of our recent decision

in United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), which had

not yet been decided at the time of Marroquin’s sentencing.

      VACATED and REMANDED.




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