United States v. Marquez-Gonzalez

United States Court of Appeals
for the Fifth Circuit

No. 20-50013
consolidated with
No. 20-50027
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Elier Isai Marquez-Gonzalez,

Defendant—Appellant.

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-558-1
USDC No. 4:19-CR-632-1

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Elier Isai Marquez-Gonzalez appeals his within-guidelines sentence of
21 months of imprisonment and three years of supervised release, which the

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
August 19, 2020

Lyle W. Cayce
Clerk
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district court imposed following his guilty plea conviction for entry after
deportation, in violation of 8 U.S.C. § 1326. He argues that his sentence was
greater than necessary to meet the sentencing goals set out in 18 U.S.C.
§ 3553(a) and therefore unreasonable. Marquez-Gonzalez also appeals a
separate revocation judgment, but raises no challenge to the revocation of his
supervised release.
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in
a bifurcated review of the sentence imposed by the district court. United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we
consider whether the district court committed a “significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines
range.” Gall, 552 U.S. at 51. If there is no error or the error is harmless, we
may proceed to the second step and review the substantive reasonableness of
the sentence imposed for an abuse of discretion. Id.; see also Delgado-
Martinez, 564 F.3d at 751-53. A within-guidelines sentence such as Marquez-
Gonzalez’s is afforded a presumption of reasonableness. United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). This presumption may be rebutted
only if the defendant establishes “that the sentence does not account for a
factor that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” Id.
Marquez-Gonzalez has not rebutted the presumption. He contends
that the district court abused its discretion in imposing a sentence at the top
of the advisory range given his stated reason for illegally reentering the
United States, namely the need to earn money and provide treatment for his
handicapped daughter, and that the guidelines range overstated both the
seriousness of his offense and his dangerousness. However, the district court
heard Marquez-Gonzalez’s arguments regarding mitigation and the nature of
his prior criminal convictions and sentences, and it ultimately decided to
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impose a sentence at the top of the advisory guidelines range. The district
court was in the best position to evaluate Marquez-Gonzalez’s history and
characteristics, as well as the need for the sentence imposed to further the
objectives set forth in § 3553(a), and its decision is entitled to deference. See
Gall, 552 U.S. at 51-52.
Finally, we have previously rejected Marquez-Gonzalez’s arguments
regarding the nature of illegal reentry offenses and double-counting under
U.S.S.G. § 2L1.2. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009); United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
AFFIRMED.

Case: 20-50013 Document: 00515532727 Page: 3 Date Filed: 08/19/2020