United States v. Roman-Hernandez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 15, 2006

Charles R. Fulbruge III
Clerk
No. 06-40230
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ROMAN-HERNANDEZ, also known as Filemon Roman-Hernandez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-811
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Miguel Roman-Hernandez (Roman) appeals the sentence he

received for illegally reentering the United States after

deportation, in violation of 8 U.S.C. § 1326. Roman argues that

this court should vacate his sentence and remand his case for

resentencing because the district court failed to indicate that

it considered the factors set forth in 18 U.S.C. § 3553(a) when

it imposed its sentence, as he believes is required by United

States v. Booker, 543 U.S. 220 (2005). Roman’s argument is

unavailing. Because Roman’s sentence was within a properly

*
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this opinion should not be published and is not precedent except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. 06-40230
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calculated guidelines range, this court infers that the district

court considered all the factors for a fair sentence set forth in

the Guidelines. See United States v. Alonzo, 435 F.3d 551, 554

(5th Cir. 2006); United States v. Mares, 402 F.3d 511, 518-19

(5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

Roman also challenges the constitutionality of § 1326(b) in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Roman’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although Roman argues

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). Roman 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.