United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2007
Charles R. Fulbruge III
No. 06-40835 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO JIMENEZ-ZAMORA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-18-ALL
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Arturo Jimenez-Zamora appeals his conviction of and sentence
for illegal reentry in violation of 8 U.S.C. § 1326. Finding no
error, we affirm.
Jimenez-Zamora contends the district court erred by failing to
articulate specific reasons for rejecting his arguments for a
sentence below the advisory sentencing guideline range. He also
urges that the sentence fails to take into account the sentencing
*
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this opinion should not be published and is not precedent except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. 06-40835
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factors of 18 U.S.C. § 3553(a) with respect to his proffered rea-
sons for a lower sentence. Although these arguments are inter-
twined throughout Jimenez-Zamora’s brief, we view them as separ-
ately asserting (1) that the sentence was unreasonable because the
district court erred by failing to set forth reasons for its sen-
tence and (2) that the sentence is unreasonable because the court
gave improper or insufficient weight to Jimenez-Zamora’s arguments
in light of the § 3553(a) factors.
With respect to the first assertion, we agree with the govern-
ment that, because Jiminez-Zamora failed to object that the dis-
trict court did not articulate reasons, review is for plain error.
See United States v. Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir.
2000). As for the second point, we assume, without deciding, that
Jimenez-Zamora’s request for a sentence below the guidelines pre-
served his objection to the district court’s weighing of the sen-
tencing factors. See id.; see also United States v. Castro-Juarez,
425 F.3d 430, 433-34 (7th Cir. 2005).
Jimenez-Zamora’s argument that the district court must more
explicitly provide reasons for imposing a sentence within the
guideline when the defendant has offered specific arguments for a
non-guideline sentence is unsupported by our precedent, which pro-
vides that a district court’s statement that it is adopting the
presentence report and the guideline applications is sufficient ex-
planation. See United States v. Hernandez, 457 F.3d 416, 424 (5th
Cir. 2006). Because Jimenez-Zamora’s argument would require an ex-
No. 06-40835
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tension of our precedent, he cannot show plain error. See United
States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir.), cert.
denied, 126 S. Ct. 641 (2005).
We also reject Jimenez-Zamora’s contention that the district
court did not give sufficient consideration to his arguments in
support of a lower sentence. Our review of the sentence is for
reasonableness. See United States v. Mares, 402 F.3d 511, 519 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). Where, as here, a dis-
trict court exercises its discretion to impose a sentence within a
properly calculated guideline range and states that it is doing so,
we infer that the court has considered all the factors for a fair
sentence set forth in the guidelines. Id. It will be rare for us
to say that such a sentence is unreasonable. Id.
Jimenez-Zamora asserts (1) that the district court afforded
his conviction for lewd or lascivious battery too much weight, be-
cause the underlying sexual conduct was consensual, and (2) that
the court did not give sufficient consideration to his motivation
for returning to the United States, namely, his long-standing con-
nection to this country. Such arguments are contrary to guideline
policies. See United States v. Alvarado-Hernandez, 465 F.3d 188,
189-90 (5th Cir. 2006) (in which consensual sexual conduct was
found to support a U.S.S.G. § 2L1.2 enhancement); U.S.S.G. § 5H1.6
(stating that community ties ordinarily are not relevant in deter-
mining a downward departure). A district court must consider the
policies of the guidelines in deciding whether to impose a sentence
No. 06-40835
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outside the guideline range. See United States v. Duhon, 440 F.3d
711, 717-18 (5th Cir. 2006), petition for cert. filed (May 18,
2006) (No. 05-11144). Given the foregoing and the deference owed
to the sentence, we cannot conclude that the district court improp-
erly weighed any of the § 3553(a) factors.
Finally, Jimenez-Zamora’s constitutional challenge to
§ 1326(b) 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 it in light of Apprendi v. New Jersey, 530 U.S. 466
(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.), cert. denied, 126 S. Ct.
298 (2005); Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006).
Jimenez-Zamora properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises it
to preserve it for further review.
The judgment is AFFIRMED.