     Case: 19-10068       Document: 00515190548         Page: 1     Date Filed: 11/07/2019




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

                                                                                  FILED
                                     No. 19-10068                          November 7, 2019
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN PEREZ-ROMAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-184-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Juan Perez-Roman challenges his above-Guidelines sentence of, inter
alia, 72-months’ imprisonment for illegal reentry after deportation, in violation
of 8 U.S.C. § 1326(a) and (b)(1). Perez asserts: his sentence was procedurally
and substantively unreasonable; and the district court imposed an
unconstitutional sentencing enhancement relating to 8 U.S.C. § 1326(b)(1)




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-10068

(establishing sentencing enhancement when removal follows, inter alia, a
felony). Each claim fails.
      Although post-Booker, the Sentencing 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, 46, 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 claiming procedural error, Perez asserts the district court failed to
consider the pertinent 18 U.S.C. § 3553(a) sentencing factors; failed to
adequately explain the upward variance imposed; failed to respond to his
request at sentencing for a within-Guidelines sentence; and considered factors
already accounted for in calculating the Guidelines range. The court, however,
listened to the parties’ assertions, cited the § 3553(a) factors generally, and
provided an adequate explanation of the above-Guidelines sentence. The court
further referenced specific facts and circumstances of this case, including
Perez’ history of numerous prior deportations and illegal reentries and the
need to deter yet another illegal reentry. See United States v. Pillault, 783
F.3d 282, 289–90 (5th Cir. 2015) (holding a fact-specific explanation, consistent
with the § 3553(a) factors, is sufficient to justify a sentence outside the
Guidelines range). To the extent the district court based the above-Guidelines
sentence on a factor already accounted for by the Guidelines range, this does
not constitute procedural error. United States v. Brantley, 537 F.3d 347, 350



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                                    No. 19-10068

(5th Cir. 2008) (“[A] district court may rely upon factors already incorporated
by the Guidelines to support a non-Guidelines sentence”.) (citation omitted).
      In challenging the substantive reasonableness of his sentence, Perez
asserts it was greater than necessary to achieve the sentencing goals in 18
U.S.C. § 3553(a), and the court did not adequately consider or properly weigh
the mitigating factors Perez presented. A non-Guidelines sentence fails to
comport with § 3553(a) when it “(1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant
or improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors”. United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015)
(citation omitted).     “[R]eview for substantive reasonableness is highly
deferential”.    Id.    (internal   quotation   marks    and   citation   omitted).
Disagreement with the district court’s balancing of the § 3553(a) factors “is not
a sufficient ground for reversal”. United States v. Malone, 828 F.3d 331, 342
(5th Cir. 2016) (citations omitted).
      In the light of this high level of deference, Perez has not shown the court
gave improper weight to any factor or clearly erred in its balancing.            As
explained above, in support of its sentence, the court adequately considered
the parties’ positions, weighed “all of the facts and the circumstances in this
case”, and explained the sentence was based on valid § 3553(a) factors,
including deterrence.
      Finally, Perez asserts the court imposed an unconstitutional sentencing
enhancement under 8 U.S.C. § 1326(b)(1) when it did not advise him, before he
pleaded guilty, that the fact of his prior conviction was an element of the
offense. In Almendarez-Torres, however, the Supreme Court held, for purposes
of a statutory sentencing enhancement, a prior conviction need not be alleged
in the indictment or found by a jury beyond a reasonable doubt. Almendarez-



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Torres v. United States, 523 U.S. 224, 239–47 (1998). Our court has held
subsequent Supreme Court decisions did not overrule Almendarez-Torres. See,
e.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (stating Alleyne
v. United States, 570 U.S. 99, 107–08, 111 n.1 (2013), which held that “any fact
that increases a defendant’s mandatory minimum sentence must be presented
to a jury and found beyond a reasonable doubt”, did not overrule Almendarez-
Torres). Perez correctly observes this challenge is foreclosed by our precedent
and seeks only to preserve the issue for further appellate review.
      AFFIRMED.




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