Opinion
No. 06-40754, Summary Calendar.
August 2, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:05-CR-2570-ALL.
Before DAVIS, WIENER and BARKSDALE, Circuit Judges.
Juan Antonio Ramirez-Juarez appeals his conviction and 41-month sentence for attempted illegal reentry. Ramirez-Juarez argues that the sentence imposed by the district court should not be afforded a presumption of reasonableness merely because it is within the properly calculated guidelines range. Ramirez-Juarez's argument is foreclosed by Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007).
Ramirez-Juarez further contends that even if a presumption of reasonableness applies to his sentence, the presumption is overcome and the sentence is unreasonable when, as in his case, the district court "is presented with nonfrivolous grounds for a below-Guidelines sentence that the court simply passed over in silence."
The district court heard the arguments that Ramirez-Juarez had only one prior offense several years earlier and that he had reentered the United States for family reasons. The judge commented that, although Ramirez-Juarez had only one prior offense, it was a serious offense. Based on that serious history, the court stated that a sentence within the guideline range "would be reasonable." Under Rita, the district court's statement of reasons was sufficient. 127 S.Ct. at 2469.
Ramirez-Juarez also challenges the constitutionality of 8 U.S.C. § 1326(b). His. 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 Ramirez-Juarez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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.), cert. denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Ramirez-Juarez 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.
AFFIRMED.