Opinion
No. 07-50028 Summary Calendar.
August 17, 2007.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District Of Texas, San Antonio, TX, for Plaintiff-Appellee.
Federal Public Defender's Office, Western District of Texas, San Antonio, TX, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:06-CR-1235-1.
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
Erik Alberto Mendez-Lopez (Mendez) appeals his guilty-plea conviction and sentence for illegal reentry following deportation. The Government has moved for summary affirmance. Alternatively, the Government seeks an extension of time to file a brief.
Mendez asserts that his 46-month guideline sentence violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and is unreasonable. The presumption of reasonableness afforded a sentence within a properly calculated advisory guideline range is consistent with Booker. See Rita v. United States, ___ U.S. ___, ___, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). The record reflects that the district court considered Mendez's arguments, the recommendation of the presentence report, and the applicable guideline range. Because the district court exercised its discretion to impose a sentence within a properly calculated guideline range, the sentence is presumptively reasonable and we may infer that the district court considered all the factors for a fair sentence set forth in the Guidelines. See Rita, 127 S.Ct. at 2462-70; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
Mendez also argues that his sentence is unreasonable because the district court failed to properly assess the factors set forth in § 3553(a). The district court's sentence was imposed with sufficient consideration of the § 3553(a) factors and is not unreasonable. See United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007).
Mendez also argues, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the 46-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the 8 U.S.C. § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury.
Mendez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although he contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Mendez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.
Accordingly, the Government's motion for summary affirmance is GRANTED, its alternative request for an extension of time is DENIED as unnecessary, and the decision of the district court is AFFIRMED.