United States of America v. Jesus Marroquin-Frias

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Jeremy D. Fogel, United States District Judge for the***
Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS MARROQUIN-FRIAS,
Defendant - Appellant.
No. 09-50033
D.C. No. 3:08-CR-00884-H-1
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted February 10, 2010**
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District***
Judge.
FILED
FEB 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Marroquin concedes that these arguments are futile under current law and1
raises this issue only to preserve it for Supreme Court review.
2
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)(1)(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
(1998), has been implicitly invalidated and that the doctrine of constitutional
avoidance requires capping his sentence at two years. See, e.g., United States v.1
Grisel, 488 F.3d 844, 846–47 (9th Cir. 2007) (en banc).

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3
Next, Marroquin argues the district court failed to adequately respond to his
arguments at sentencing, thereby rendering his sentence procedurally unreasonable
under 18 U.S.C. § 3553(c). The district judge directly questioned Marroquin’s
counsel at sentencing regarding his arguments for a variance. The district judge
further explained that she had reviewed the information submitted by the parties
and had considered the Guidelines and the § 3553(a) factors in making her
sentencing determination. In a relatively simple case such as this, especially where
the judge imposed a Guidelines sentence, no further explanation was required. See
Rita v. United States, 551 U.S. 338, 356–58 (2007); Carty, 520 F.3d at 992.
Finally, Marroquin argues his sentence is substantively unreasonable
because his qualifying crime-of-violence convictions are twenty-three years old
and he has no subsequent violent criminal history. We vacate Marroquin’s 51-
month sentence and remand this case to the district court to reconsider the weight
to be afforded Marroquin’s 23-year-old convictions in light of our recent decision
in United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), which had
not yet been decided at the time of Marroquin’s sentencing.
VACATED and REMANDED.

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