U.S. v. Rodriguez-Rodriguez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Jose Bernardo…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 14, 2007

238 F. App'x 16 (5th Cir. 2007)

Opinion

No. 06-11160, Summary Calendar.

June 14, 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-2032.

Before GARWOOD, CLEMENT and PRADO, 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Jose Bernardo Rodriguez-Rodriguez was convicted of one count of having been found in the United States following deportation and sentenced to serve 57 months in prison. Rodriguez-Rodriguez argues that his bottom of the guideline range sentence (imposed July 2006) is unreasonable because he requested a sentence below the guidelines based on the 18 U.S.C. § 3553 factors and that the district court imposed the sentence without considering the mitigating factor or the nature and circumstances of the offense. The record shows that Rodriguez-Rodriguez's factual assertion that the district court did not consider the mitigating circumstance presented at sentencing is factually incorrect. Rodriguez-Rodriguez has not shown that the sentence imposed by the district court is unreasonable. See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).

Rodriguez-Rodriguez 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. Rodriguez-Rodriguez'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 Almendarez-Torres is 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). Rodriguez-Rodriguez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for future review.

The judgment of the district court is

AFFIRMED.