United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 29, 2006
August 15, 2006
UNITED STATES COURT OF APPEALS
for the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 05-50978
UNITED STATES,
Plaintiff-Appellee,
VERSUS
ROBERTO AGUIRRE-VILLA,
a/k/a Jose Hernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-687)
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:
Treating the petition for rehearing as a petition for en banc
rehearing, the petition for rehearing is DENIED. Treating the
petition for rehearing as a petition for panel rehearing, the
petition for rehearing is GRANTED for the limited purpose of
withdrawing the prior panel opinion and substituting this opinion
therefor.
This is a post-Booker case in which Appellant Roberto Aguirre-
Villa (“Aguirre-Villa”) challenges the reasonableness of his
sentence under United States v. Booker, 543 U.S. 220 (2005), and
the constitutionality of his sentence under Apprendi v. New Jersey,
530 U.S. 466 (2000). We affirm his sentence.
I.
In 2004, Aguirre-Villa pled guilty to illegal reentry and was
sentenced to 77 months in prison. In 2005, this Court granted the
parties’ agreed motion to remand for resentencing post-Booker.
At resentencing, Aguirre-Villa asked the district court to
impose a sentence below the applicable guideline sentencing range.
He argued that a sentence within the applicable 77 to 96 month
range would be unreasonable because the Western District of Texas
lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would
have permitted a downward departure of up to four levels in a
district with such a program. Prior to his initial sentencing,
Aguirre-Villa had also challenged (under Apprendi) the sixteen-
level enhancement imposed by the court for a prior aggravated
felony conviction.
The district court rejected Aguirre-Villa’s Apprendi challenge
and decided that although the guideline range would have been lower
(52 to 78 months instead of 77 to 96 months) had Aguirre-Villa been
arrested in an adjacent district (the District of New Mexico), it
would reimpose a 77-month sentence. Aguirre-Villa timely appealed.
II.
A. Booker Challenge
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Post-Booker, we continue to review a district court’s
interpretation and application of the guidelines de novo and its
findings of fact for clear error. United States v. Caldwell, 448
F.3d 287, 290 (5th Cir. 2006) (citing United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005); United States v. Creech, 408
F.3d 264, 270 & n.2 (5th Cir.), cert. denied, 126 S. Ct. 777
(2005)). The district court’s sentence is reviewed for
reasonableness. Id. (citing Booker, 543 U.S. at 261; United States
v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005)). “In determining an appropriate sentence, a district court
must consider as guideposts a properly calculated guideline range
and the sentencing factors in 18 U.S.C. § 3553(a).” Id. (citing
Mares, 402 F.3d at 518-19; United States v. Duhon, 440 F.3d 711,
714 (5th Cir. 2006)). “If a district court sentences a defendant
within a properly calculated guideline range, that sentence enjoys
a presumption of reasonableness.” Id. (citing United States v.
Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006)).
In this case, the district court sentenced Aguirre-Villa
within the applicable guideline range.1 In fact, it sentenced him
to the shortest sentence in that range, 77 months. Accordingly, his
sentence is entitled to a presumption of reasonableness. Aguirre-
Villa has not overcome that presumption. Aguirre-Villa’s only
1
Aguirre-Villa concedes this point.
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challenge to the reasonableness of his sentence is that it does not
fully account for the factors contained in 18 U.S.C. § 3553(a),
specifically § 3553(a)(2)(A), “the need for the sentence imposed to
reflect the seriousness of the offense,” and § 3553(a)(6), “the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.”2 According to Aguirre-Villa, his sentence failed to
reflect that his illegal reentry was, “at bottom,” an international
trespass, not a crime of violence or a crime that posed a danger to
others. Further, Aguirre-Villa argues that his sentence failed to
reflect the need to avoid a sentence disparity among defendants
convicted in districts with early disposition programs and
defendants convicted in districts without such programs.
The district court resentenced Aguirre-Villa post-Booker
pursuant to an advisory application of the Sentencing Guidelines.
The court considered and ultimately rejected Aguirre-Villa’s
sentencing disparity argument. Further, the court considered all of
§ 3553(a)’s factors, including Aguirre-Villa’s extensive criminal
history and history of recidivism, before deciding on an
appropriate sentence. The refusal to factor in, when sentencing a
defendant, the sentencing disparity caused by early disposition
2
Aguirre-Villa presents additional arguments regarding § 3553(a)
in his reply brief, but this Court will not ordinarily consider
arguments raised for the first time in a reply brief. See United
States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
Accordingly, we decline to address them.
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programs does not render a sentence unreasonable. Section
3553(a)(6) is but one factor in a list of factors to be considered;
moreover, Congress must have thought the disparity warranted when
it authorized early disposition programs without altering
§ 3553(a)(6). See United States v. Marcial-Santiago, 447 F.3d 715,
719 (9th Cir. 2006); United States v. Montes-Pineda, 445 F.3d 375,
379-80 (4th Cir. 2006); United States v. Galicia-Cardenas, 443 F.3d
553, 555 (7th Cir. 2006); United States v. Martinez-Martinez, 442
F.3d 539, 543 (7th Cir. 2006); United States v. Jimenez-Beltre, 440
F.3d 514, 519 (1st Cir. 2006) (en banc); United States v.
Sebastian, 436 F.3d 913, 916 (8th Cir. 2006); United States v.
Morales-Chaires, 430 F.3d 1124, 1131 (10th Cir. 2005); United
States v. Martinez-Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005);
United States v. Hernandez-Cervantes, 161 F. App’x 508, 512 (6th
Cir. 2005). We agree with the Eighth Circuit’s reasoning in
Sebastian that
to require [a] district court to vary from the advisory
guidelines based solely on the existence of early
disposition programs in other districts would conflict
with the decision of Congress to limit the availability
of such sentence reductions to select geographical areas,
and with the Attorney General’s exercise of prosecutorial
discretion to refrain from authorizing early disposition
agreements in [the district in question].
436 F.3d at 916. Therefore, after reviewing the briefs and the
record and finding no persuasive reason to disturb the district
court’s sentence, we are convinced that Aguirre-Villa’s sentence is
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reasonable under Booker and Fifth Circuit precedent.
B. Apprendi Challenge
Aguirre-Villa recognizes that his Apprendi challenge is
foreclosed by circuit precedent and raises it only to preserve it
for possible Supreme Court review. See United States v. Valdez-
Maltos, 443 F.3d 910, 912 (5th Cir. 2006).
III.
Accordingly, Aguirre-Villa’s sentence is AFFIRMED.
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