U.S. v. Macias-Cruz

Full title: UNITED STATES of America, Plaintiff-Appellee v. Juan Manuel MACIAS-CRUZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 21, 2007

236 F. App'x 131 (5th Cir. 2007)

Opinion

No. 06-20829 Conference Calendar.

August 21, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Samy K. Khalil, 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. 4:06-CR-34-ALL.

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Juan Manuel Macias-Cruz was convicted of illegal reentry into the United States after having been deported and was sentenced to serve 45 months in prison. Macias-Cruz contends that our rulings giving a presumption of reasonableness to guidelines sentences effectively reinstate mandatory guidelines sentencing and render his sentence unreasonable as a matter of law. He concedes that his argument is foreclosed by circuit precedent, but he raises it to preserve it for further review. The argument fails in light of the decision in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462-66, 168 L.Ed.2d 203 (2007).

Macias-Cruz also 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. Macias-Cruz'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 it 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. 2005); see also Rangel-Reyes v. United States, ___ U.S. ___, 126 S.Ct. 2873, 165 L.Ed.2d 910 (2006); United States v. Pineda-Arrellano, 492 F.3d 624 (5th Cir. 2007). Macias-Cruz 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.