Case: 22-11068 Document: 00516832970 Page: 1 Date Filed: 07/25/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-11068 Summary Calendar FILED ____________ July 25, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Jose Fernando Martinez-Hernandez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:22-CR-41-1 ______________________________ Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: * Jose Martinez-Hernandez pleaded guilty of illegal reentry after re- moval in violation of 8 U.S.C. § 1326(a) and (b)(2) and was sentenced to months of imprisonment and two years of supervised release.

On appeal, Martinez-Hernandez first contends that this within- guidelines sentence was substantively unreasonable. We review the substan- _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-11068 Document: 00516832970 Page: 2 Date Filed: 07/25/2023

tive reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence imposed within a properly calculated guidelines range is presumptively reasonable. United States v. Neba, 901 F.3d 260, 263 (5th Cir. 2018). Before imposing a within-guidelines sentence, the district court considered the advisory guidelines range, Martinez-Hernandez’s arguments for a sentence at the bottom of the guide- line range, and the 18 U.S.C. § 3553(a) factors. Although Martinez- Hernandez claims that the sentence did not adequately take into account personal history and circumstances, Martinez-Hernandez has failed to dem- onstrate “‘that the district court did not consider a sentencing factor that should have received significant weight, gave significant weight to a factor it should have discounted, or made a clear error of judgment when it balanced the relevant factors.’” United States v. Hinojosa-Almance, 977 F.3d 407, 412 (5th Cir. 2020) (quoting United States v. Rodriguez-De la Fuente, 842 F.3d 371, 374 (5th Cir. 2016)). Because Martinez-Hernandez has not rebutted the presumption of reasonableness that attached to the within-guidelines sen- tence, Martinez-Hernandez has failed to demonstrate that the sentence is substantively unreasonable. See Neba, 901 F.3d at 263.

Additionally, Martinez-Hernandez maintains that the sentence ex- ceeds the statutory maximum and is therefore unconstitutional because it was enhanced based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Martinez-Hernandez acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve it for possible Supreme Court review.

Subsequent decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez- Torres. See United States v. Pervis, 937 F.3d 546, 553−54 (5th Cir. 2019).

Thus, Martinez-Hernandez is correct that this argument is foreclosed.

The judgment is AFFIRMED.