Case: 21-10350 Document: 00516133177 Page: 1 Date Filed: 12/15/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-10350 December 15, 2021 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Antonio Barahona-Paz, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CR-258-1 Before Barksdale, Costa, and Engelhardt, Circuit Judges. Per Curiam:* Jose Antonio Barahona-Paz pleaded guilty to illegal reentry after deportation. He was sentenced to, inter alia, an above-Sentencing Guidelines term of 36-months’ imprisonment. Barahona contends: the statutory enhancement provision in 8 U.S.C. § 1326(b) (criminal penalties for reentry * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-10350 Document: 00516133177 Page: 2 Date Filed: 12/15/2021 No. 21-10350 of certain removed aliens) is unconstitutional and, therefore, his guilty plea was unknowing and involuntary; and his sentence was substantively unreasonable. Constitutional questions are reviewed de novo. United States v. Brown, 250 F.3d 907, 913 (5th Cir. 2001). Barahona contends: 8 U.S.C. § 1326(b) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) (explaining “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”); and, as a result, his guilty plea was not knowing and voluntary because the court did not advise him that a prior conviction is an element of the offense under § 1326(b). As he concedes, however, his assertion § 1326(b) is unconstitutional is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226–27, 239–47 (1998) (holding, for purposes of statutory sentencing enhancement, prior conviction not a fact that must be asserted in indictment or found by jury beyond reasonable doubt), and raises the issue only to preserve it for possible further review. See also, United States v. Pineda- Arrellano, 492 F.3d 624, 625–26 (5th Cir. 2007) (considering the effect of Apprendi). Accordingly, his plea assertion fails as well. Regarding his claimed substantively-unreasonable sentence, Barahona asserts the court erred by: imposing an upward variance; not giving him credit for time spent in state custody; and not ordering his sentence be served concurrently with his state sentences under Guideline § 5G1.3 (offenses with relevant conduct). Each claim fails. Although post-Booker, the 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 2 Case: 21-10350 Document: 00516133177 Page: 3 Date Filed: 12/15/2021 No. 21-10350 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 …
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