     Case: 18-50777       Document: 00514987857         Page: 1     Date Filed: 06/07/2019




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

                                     No. 18-50777                         FILED
                                   Summary Calendar                    June 7, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CLOVIS JOSEPH SCHEXNAYDER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:17-CR-106-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Clovis Joseph Schexnayder pleaded guilty to failure to register as a sex
offender, in violation of 18 U.S.C. § 2250(a), and received a sentence of, inter
alia, 46-months’ imprisonment. In his sole issue on appeal, he challenges the
imposition of a six-level enhancement pursuant to Sentencing Guideline
§ 2A3.5(b)(1)(A) (applies if “defendant committed . . . a sex offense against
someone other than a minor”), based on the district court’s finding he had


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-50777     Document: 00514987857      Page: 2   Date Filed: 06/07/2019


                                  No. 18-50777

committed a sex offense during the time he had failed to register. In that
regard, Schexnayder asserts the court erred in its finding his involvement in
that offense based on a preponderance of the evidence, rather than the
reasonable-doubt, standard.
      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, 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). As discussed, only procedural
error is claimed.
      “The sentencing judge is entitled to find by a preponderance of the
evidence all the facts relevant to the determination of a Guidelines sentencing
range.” United States v. Lewis, 476 F.3d 369, 389 (5th Cir. 2007) (citation
omitted).   This standard applies even if the issue involves defendant’s
commission of another offense. See United States v. Watts, 519 U.S. 148, 156–
57 (1997) (per curiam).     Schexnayder concedes our court has rejected his
contention in binding precedent (see Lewis), and raises the issue only in order
to preserve it for possible further review.
      AFFIRMED.




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