IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10068

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN PEREZ-ROMAN,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18-CR-184-1

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Juan Perez-Roman challenges his above-Guidelines sentence of, inter 

alia, 72-months’ imprisonment for illegal reentry after deportation, in violation 

of 8 U.S.C. § 1326(a) and (b)(1). Perez asserts: his sentence was procedurally 

and substantively unreasonable; and the district court imposed an 

unconstitutional sentencing enhancement relating to 8 U.S.C. § 1326(b)(1)

 

* Pursuant to 5th Cir. R. 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 Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 7, 2019

Lyle W. Cayce

Clerk

 Case: 19-10068 Document: 00515190548 Page: 1 Date Filed: 11/07/2019
No. 19-10068

2

(establishing sentencing enhancement when removal follows, inter alia, a 

felony). Each claim fails. 

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. DelgadoMartinez, 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. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

In claiming procedural error, Perez asserts the district court failed to 

consider the pertinent 18 U.S.C. § 3553(a) sentencing factors; failed to 

adequately explain the upward variance imposed; failed to respond to his

request at sentencing for a within-Guidelines sentence; and considered factors 

already accounted for in calculating the Guidelines range. The court, however,

listened to the parties’ assertions, cited the § 3553(a) factors generally, and 

provided an adequate explanation of the above-Guidelines sentence. The court 

further referenced specific facts and circumstances of this case, including

Perez’ history of numerous prior deportations and illegal reentries and the 

need to deter yet another illegal reentry. See United States v. Pillault, 783 

F.3d 282, 289–90 (5th Cir. 2015) (holding a fact-specific explanation, consistent 

with the § 3553(a) factors, is sufficient to justify a sentence outside the 

Guidelines range). To the extent the district court based the above-Guidelines 

sentence on a factor already accounted for by the Guidelines range, this does 

not constitute procedural error. United States v. Brantley, 537 F.3d 347, 350 

 Case: 19-10068 Document: 00515190548 Page: 2 Date Filed: 11/07/2019
No. 19-10068

3

(5th Cir. 2008) (“[A] district court may rely upon factors already incorporated 

by the Guidelines to support a non-Guidelines sentence”.) (citation omitted). 

In challenging the substantive reasonableness of his sentence, Perez 

asserts it was greater than necessary to achieve the sentencing goals in 18 

U.S.C. § 3553(a), and the court did not adequately consider or properly weigh 

the mitigating factors Perez presented. A non-Guidelines sentence fails to 

comport with § 3553(a) when it “(1) does not account for a factor that should 

have received significant weight, (2) gives significant weight to an irrelevant 

or improper factor, or (3) represents a clear error of judgment in balancing the 

sentencing factors”. United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015)

(citation omitted). “[R]eview for substantive reasonableness is highly 

deferential”. Id. (internal quotation marks and citation omitted). 

Disagreement with the district court’s balancing of the § 3553(a) factors “is not 

a sufficient ground for reversal”. United States v. Malone, 828 F.3d 331, 342 

(5th Cir. 2016) (citations omitted). 

In the light of this high level of deference, Perez has not shown the court 

gave improper weight to any factor or clearly erred in its balancing. As 

explained above, in support of its sentence, the court adequately considered 

the parties’ positions, weighed “all of the facts and the circumstances in this 

case”, and explained the sentence was based on valid § 3553(a) factors, 

including deterrence. 

Finally, Perez asserts the court imposed an unconstitutional sentencing 

enhancement under 8 U.S.C. § 1326(b)(1) when it did not advise him, before he 

pleaded guilty, that the fact of his prior conviction was an element of the 

offense. In Almendarez-Torres, however, the Supreme Court held, for purposes 

of a statutory sentencing enhancement, a prior conviction need not be alleged 

in the indictment or found by a jury beyond a reasonable doubt. Almendarez-

 Case: 19-10068 Document: 00515190548 Page: 3 Date Filed: 11/07/2019
No. 19-10068

4

Torres v. United States, 523 U.S. 224, 239–47 (1998). Our court has held 

subsequent Supreme Court decisions did not overrule Almendarez-Torres. See, 

e.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (stating Alleyne 

v. United States, 570 U.S. 99, 107–08, 111 n.1 (2013), which held that “any fact 

that increases a defendant’s mandatory minimum sentence must be presented 

to a jury and found beyond a reasonable doubt”, did not overrule AlmendarezTorres). Perez correctly observes this challenge is foreclosed by our precedent 

and seeks only to preserve the issue for further appellate review. 

AFFIRMED.

 Case: 19-10068 Document: 00515190548 Page: 4 Date Filed: 11/07/2019