Opinion
No. 05-41568 Summary Calendar.
May 17, 2007.
James Lee Turner, Assistant U.S. Attorney, U-S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Timothy William Crooks, Assistant Federal Public Defender, 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-1004-ALL.
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
Victor Espinosa-Contreras (Espinosa) appeals the 46-month sentence of imprisonment imposed following his guilty plea conviction for illegal reentry following deportation. Espinosa argues that the district court did not address all of the sentencing factors listed in 18 U.S.C. § 3553(a) in imposing sentence and did not address the reasons that Espinosa advanced for a downward departure or variance from the Guidelines.
The Government argues that the court lacks jurisdiction to review the district court's discretionary denial of Espinosa's motion for a downward departure or variance.
The court lacks jurisdiction to review a discretionary decision not to depart downward from the guideline range. However, the court must still determine whether the imposition of a guideline sentence instead of a non-guideline sentence was reasonable. United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007).
Espinosa has demonstrated no error in the guidelines computation, and the district court gave appropriate reasons for the sentence. We therefore give great deference to the sentence imposed. United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Given Espinosa's serious prior drug conviction and his illegal return to the United States after serving a 40-month sentence and being deported to Mexico, and the deference due to the sentencing judge's discretion, the sentence imposed is not unreasonable.
Espinosa's constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Espinosa 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). Espinosa 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.