United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 7, 2006
Charles R. Fulbruge III
Clerk
No. 06-50262
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ALBERTO HERNANDEZ-PONCE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-2224
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Alberto Hernandez-Ponce (Hernandez) appeals his
conviction and the 46-month sentence imposed following his plea
of guilty to illegally reentering the United States after
deportation. He contends that his sentence was unreasonable in
light of the factors set forth in 18 U.S.C. § 3553(a).
Hernandez contends that the district court imposed an
unreasonable sentence in that it refused to consider the
sentencing disparity between his case and those of defendants in
districts which offer “fast-track” programs. This court recently
*
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this opinion should not be published and is not precedent except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. 06-50262
-2-
rejected a nearly identical argument, holding “[t]he refusal to
factor in, when sentencing a defendant, the sentencing disparity
caused by early disposition programs does not render a sentence
unreasonable.” United States v. Aguirre-Villa, __ F.3d __, 2006
WL 2349222 at *2 (5th Cir. Aug. 15, 2006)(No. 05-50978).
Hernandez’s sentence was within a properly calculated
advisory guideline range and is presumed reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Such a
sentence is given “great deference,” and we infer that the
sentencing court considered all the factors for a fair sentence
under § 3553(a). See United States v. Mares, 402 F.3d 511,
519-20 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). We
conclude that Hernandez has failed to rebut the presumption that
his sentence, which was at the bottom of the applicable range
under the Sentencing Guidelines, was reasonable. See Alonzo, 435
F.3d at 554-55.
Hernandez also argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 46-month term of imprisonment
imposed in his case exceeds the statutory maximum sentence
allowed for the § 1326(a) offense charged in his indictment. He
challenges the constitutionality of § 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.
No. 06-50262
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Hernandez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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). Hernandez
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.
AFFIRMED.