United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-50949
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILFREDO LIZAMA-DIAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-979-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Wilfredo Lizama-Diaz pleaded guilty to illegal reentry after
deportation and was sentenced to 46 months of imprisonment, three
years of supervised release, and a $100 special assessment.
Lizama-Diaz moves for appointment of new counsel based on his
current court-appointed attorney’s decision not to file a reply
brief in this case. The motion is DENIED.
Lizama-Diaz argues that his sentence is unreasonable and is
greater than necessary to meet the sentencing goals under 18
*
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this opinion should not be published and is not precedent except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.
No. 05-50949
-2-
U.S.C. § 3553(a) because the court did not consider his
rehabilitation. He does not challenge the district court’s
calculation of his guidelines sentencing range.
A sentence, such as Lizama-Diaz’s, “within a properly
calculated Guideline range is presumptively reasonable.” United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). In the
district court’s written Statement of Reasons it noted that it
considered, in part, “the history and characteristics of the
defendant,” which would have encompassed any rehabilitation on
Lizama-Diaz’s part. Lizama-Diaz has failed to demonstrate that
his properly calculated guidelines sentence was unreasonable.
See id.; United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
Lizama-Diaz also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Lizama-Diaz contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, 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, 126 S. Ct. 298 (2005).
Lizama-Diaz properly concedes that his argument is foreclosed in
No. 05-50949
-3-
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
AFFIRMED; MOTION DENIED.