Case: 23-50796 Document: 49-1 Page: 1 Date Filed: 07/01/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 23-50796 July 1, 2024 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Selvyn Gustavo Mejia Marroquin, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-2981-1 ______________________________ Before Barksdale, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:* Selvyn Gustavo Mejia Marroquin challenges his within-Guidelines 51- months’ sentence received after pleading guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326. He asserts his sentence is substantively unreasonable because: it overstates the seriousness of illegal reentry; and the district court improperly balanced the 18 U.S.C. § 3553(a) _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

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sentencing factors. He also asserts the recidivism enhancement in 8 U.S.C. § 1326(b) is unconstitutional.

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).

For starters, and regarding one of his challenges to the reasonableness of his sentence, Marroquin’s assertion that violations of 8 U.S.C. § 1326 generally result in unreasonably punitive sentences has been rejected by our court because the statute’s penalties reflect Congress’ conclusion that this offense is serious. See United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008) (rejecting assertion that illegal reentry is merely simple trespass).

Likewise, and as he concedes, his constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019) (discussing Almendarez-Torres). He raises this challenge only to preserve it for possible further review.

Because Marroquin’s sentence was within the Guidelines sentencing range, a presumption of reasonableness applies. See United States v. Simpson, 796 F.3d 548, 557–58 (5th Cir. 2015) (outlining standard). He has not rebutted this presumption by showing his sentence “(1) does not account for a factor that should have received significant weight, (2) gives significant

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weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors”. Id. at 558 (citation omitted).

AFFIRMED.