     Case: 19-10133      Document: 00515167741         Page: 1    Date Filed: 10/22/2019




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

                                    No. 19-10133                           FILED
                                  Summary Calendar                  October 22, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERARDO SANCHEZ-MIRANDA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-214-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Gerardo Sanchez-Miranda appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation in violation of
8 U.S.C. § 1326(a) and (b)(1). Sanchez-Miranda argues that his 55-month
sentence, which represents a nine-month upward variance from the guidelines
range, is substantively unreasonable. He also raises constitutional challenges
to his sentence, which he concedes are foreclosed but raises to preserve for
further review.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10133     Document: 00515167741     Page: 2   Date Filed: 10/22/2019


                                  No. 19-10133

      We review sentences, whether inside or outside the guidelines range, for
reasonableness in light of the sentencing factors set forth in 18 U.S.C. § 3553(a)
and review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Although Sanchez-Miranda argues that the district court clearly erred in
balancing the sentencing factors of § 3553(a), we find no reversible error. The
district court was “in a superior position to find facts and judge their import
under § 3553(a),” United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008), and relied on appropriate sentencing factors, supported by the
record, in determining that an upward variance was warranted, see
§ 3553(a)(1), (a)(2)(B), (C). Sanchez-Miranda’s 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); see Gall,
552 U.S. at 51.
      As for his argument that the district court violated his Fifth and Sixth
Amendment rights by concluding, without a jury finding, that he posed a
danger to others if he returned to the United States, Sanchez-Miranda
correctly concedes that his argument is foreclosed by United States v. Tuma,
738 F.3d 681, 693 (5th Cir. 2013), and Alleyne v. United States, 570 U.S. 99
(2013).   His argument that the enhancement provisions in § 1326(b) are
unconstitutional because the fact of a prior conviction must be alleged in the
indictment and proven to a jury beyond a reasonable doubt is likewise
foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United
States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
      The judgment of the district court is AFFIRMED.




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