Opinion
No. 06-41535, Summary Calendar.
June 25, 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 (1:06-CR-370).
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
Juan Gutierrez-Arriaga was convicted of one count of illegal reentry into the United States following an aggravated-felony conviction, and sentenced to 37 months' imprisonment.
Gutierrez-Arriaga contends his sentence is unreasonable because the district court failed to accord proper weight to the sentencing factors in 18 U.S.C. § 3553. This assertion lacks merit. When a sentence is within a properly calculated guidelines range, our court infers that the requisite sentencing factors were considered and gives great deference to that sentence. E.g., United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). The record shows: the district court gave due weight to the § 3553 factors; and the sentence is not unreasonable.
Gutierrez-Arriaga challenges the constitutionality of 8 U.S.C. § 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. This 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). Gutierrez-Arriaga properly concedes this; he raises the issue only to preserve it for further review.
AFFIRMED.