     Case: 17-10978       Document: 00514550546         Page: 1     Date Filed: 07/11/2018




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

                                                                                  FILED
                                     No. 17-10978                             July 11, 2018
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALFREDO MARTINEZ-REY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-47-1


Before BARKSDALE, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Alfredo Martinez-Rey challenges his above-Sentencing Guidelines
sentence of 120-months imprisonment, imposed following his guilty-plea
conviction for having been found unlawfully in the United States following
deportation, in violation of 18 U.S.C. §§ 1326(a) and (b)(1). He claims the
sentence was substantively unreasonable and violates due process.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-10978     Document: 00514550546      Page: 2   Date Filed: 07/11/2018


                                  No. 17-10978

      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). 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).
      In support of his substantive-reasonableness challenge, Martinez asserts
the court gave too much weight to his criminal history, which, he contends,
overstated the seriousness of his “relatively minor” convictions. (Among other
offenses, he has been removed several times.) Additionally, he contends the
court gave no weight to the following factors: the double-counting of some of
his prior convictions when calculating his offense level and criminal history;
the sentencing range that would have applied to him under the 2015 version
of Guideline § 2L1.2; and his reason for unlawfully reentering the country.
      There is no indication, however, that the court refused to account for a
factor that should have received significant weight, gave significant weight to
any improper factor, or made a clear error of judgment in balancing the
relevant factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Further, the court tied its reasons to specific facts and particular 18 U.S.C.
§ 3553(a) sentencing factors sufficient to justify the variance. Gall, 552 U.S.
at 49–53. In essence, Martinez is asking this court to reweigh the § 3553(a)
sentencing factors, which is not within the scope of our review. Id. at 51.




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                                 No. 17-10978

      For the first time on appeal, Martinez challenges the statutory
maximum sentences applicable under 8 U.S.C. § 1326(b)(1) as inapplicable
because his indictment did not allege any prior felony conviction, citing
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570
U.S. 99 (2013). As he concedes, however, the issue is foreclosed; it is, instead,
presented to preserve it for possible further review. United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007); Almendarez-Torres v. United States, 523 U.S. 224,
239–47 (1998).
      AFFIRMED.




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