United States v. Vargas-Hernandez ( 2023 )

Case: 22-11128 Document: 00516850475 Page: 1 Date Filed: 08/08/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-11128
Summary Calendar FILED
____________ August 8, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Daniel Vargas-Hernandez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-161-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
For his guilty-plea conviction, Daniel Vargas-Hernandez challenges
his 72-months’ prison sentence for illegal reentry following removal, in
violation of 8 U.S.C. § 1326(a), (b)(2). He maintains: the information in the
presentence investigation report (PSR) concerning his gang affiliation was
unreliable; and his sentence is unconstitutional because it is based on facts
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-11128
neither alleged in the indictment nor found by a jury beyond a reasonable
doubt.
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).
The information in the PSR regarding his gang affiliation was obtained
through an investigation by law enforcement and immigration agents, which
is generally considered reliable. E.g., United States v. Fuentes, 775 F.3d 213,
220 (5th Cir. 2014) (explaining PSR based on result of police investigation is
sufficiently reliable). Absent rebuttal evidence showing the information in
the immigration investigative report was “materially untrue, inaccurate or
unreliable”, Vargas fails to demonstrate the court clearly erred in its reliance
on the information in the PSR. United States v. Harris, 702 F.3d 226, 230
(5th Cir. 2012) (citation omitted).
Additionally, Vargas challenges the enhancement of his sentence
pursuant to § 1326(b), for his having sustained a qualifying conviction prior
to his removal. He contends his sentence exceeds the statutory maximum
and is therefore unconstitutional because it was enhanced based on facts that
were neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. Although he correctly concedes his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998) (ruling that prior
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No. 22-11128
aggravating-felony conviction is sentencing factor court can determine), he
presents the issue to preserve it for possible further review. (Subsequent
Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013),
and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule
Almendarez-Torres. E.g., United States v. Pervis, 937 F.3d 546, 553–54 (5th
Cir. 2019) (discussing precedent preserving Almendarez-Torres).)
AFFIRMED.
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