Opinion
No. 06-41127 Summary Calendar.
May 31, 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-1569-ALL.
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
Jose Isaias Alvarado-Huerta appeals from his guilty plea conviction and 57-month sentence for being an alien found unlawfully in the United States after deportation, in violation of 8 U.S.C. § 1326. Alvarado-Huerta argues that his sentence is contrary to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and unreasonable as a matter of law. He contends that this court's post- Booker decisions have effectively reinstated the mandatory guideline scheme condemned by Booker and further argues that, post-Booker, a district court should be allowed to disagree with policy decisions of the Sentencing Commission when imposing a sentence.
Alvarado-Huerta concedes that his argument that his sentence is contrary to Booker is foreclosed by United States v. Mares, 402 F.3d 511 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005), and its progeny, which have outlined this court's methodology for reviewing sentences for reasonableness. Furthermore, Alvarado-Huerta acknowledges that his assertion that the district court should be allowed to disagree with the policy decisions of the Sentencing Commission is foreclosed by United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006), which held that " Booker does not give sentencing courts the discretion to impose a non-Guideline sentence based upon the courts' disagreement with Congressional and Sentencing Commission policy." Alvarado-Huerta raises these issues specifically to preserve them for further review.
Alvarado-Huerta also raises constitutional challenges to § 1326(b), which are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Alvarado-Huerta 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, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Alvarado-Huerta 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.
The judgment of the district court is AFFIRMED.