United States v. Zamora-Reyes ( 2021 )

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opinion should not be published and is not precedent except under the limited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.
2