United States v. Zamora-Reyes

Case: 21-10210     Document: 00516108986         Page: 1     Date Filed: 11/29/2021




              United States Court of Appeals
                   for the Fifth Circuit                         United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                November 29, 2021
                                  No. 21-10210                     Lyle W. Cayce
                                Summary Calendar                        Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Fredy Zamora-Reyes,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:20-CR-121-1


   Before King, Costa, and Ho, Circuit Judges
   Per Curiam:*
          Fredy Zamora-Reyes appeals his 95-month within-guidelines
   sentence imposed for his illegal reentry conviction. First, he argues that 8
   U.S.C. § 1326(b) is unconstitutional under Apprendi v. New Jersey, 530 U.S.
   466 (2000), and that his guilty plea was not knowing and voluntary because


          *
            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   opinion should not be published and is not precedent except under the limited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: 21-10210      Document: 00516108986           Page: 2    Date Filed: 11/29/2021




                                     No. 21-10210


   the district court did not advise him that a prior conviction is an element of
   the offense under § 1326(b). As he concedes, however, this argument is
   foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 239-
   47 (1998). See, e.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
   2014).
            Next, Zamora-Reyes contends that his sentence is substantively
   unreasonable. Our review is for abuse of discretion. See Holguin-Hernandez
   v. United States, 140 S. Ct. 762, 766 (2020); Gall v. United States, 552 U.S. 38,
   46-47, 49-51 (2007).
            The within-guidelines sentence that the district court imposed is
   entitled to a presumption of reasonableness. See United States v. Hernandez,
   876 F.3d 161, 166 (5th Cir. 2017). Zamora-Reyes’s disagreement with the
   district court’s balancing of the sentencing factors does not rebut that
   presumption, see United States v. Koss, 812 F.3d 460, 472 (5th Cir. 2016), and
   we will not reweigh the sentencing factors, see United States v. Heard, 709
   F.3d 413, 435 (5th Cir. 2013). Moreover, Zamora-Reyes has not shown that
   the district court failed to account for a factor that should have received
   significant weight, that it gave “significant weight to an irrelevant or
   improper factor,” or that it made “a clear error of judgment in balancing the
   sentencing factors.” Hernandez, 876 F.3d at 166. Thus, the judgment of the
   district court is AFFIRMED.




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