United States v. Jesus Marroquin-Frias

MEMORANDUM

Jesus Marroquin-Frias appeals his within-Guidelines, 51-month sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326 (a) & (b). Because of his prior convictions for robbery and assault with a firearm, the district court enhanced Marroquin’s base offense level by sixteen levels in accordance with U.S.S.G. § 2L1.2(b)(l)(A)(ii). Marroquin argues his sentence is unconstitutional and both procedurally and substantively unreasonable. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we remand for re-sentencing.

We review challenges to the constitutionality of a sentence de novo, United States v. Raygosa-Esparza, 566 F.3d 852, 854 (9th Cir.2009); we review the substantive and procedural reasonableness of a sentence for an abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008). As an initial matter, consistent with a number of our prior decisions, we reject Marroquin’s claims that the prior conviction exception in Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), has been implicitly invalidated and that the doctrine of constitutional avoidance requires capping his sentence at two…