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, 2007
Charles R. Fulbruge III
Clerk
No. 06-20189
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL CABALLERO-ZARATE, also known as Israel Zarate
Caballero,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-416-ALL
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Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Israel Caballero-
Zarate (Caballero) preserves for further review his contention
that his sentence is unreasonable because this court’s post-
Booker** rulings have effectively reinstated the mandatory
Sentencing Guideline regime condemned in Booker. Caballero
concedes that his argument is foreclosed by United States v.
Mares, 402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43
*
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this opinion should not be published and is not precedent except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.
**
United States v. Booker, 543 U.S. 220 (2005).
No. 06-20189
-2-
(2005), and its progeny, which have outlined this court’s
methodology for reviewing sentences for reasonableness.
Caballero also preserves for further review his contention that
his sentence is unreasonable because the illegal reentry
guideline is unduly severe. Caballero concedes that this
argument is foreclosed by United States v. Tzep-Mejia, 461 F.3d
522, 527 (5th Cir. 2006), which held that “Booker does not give
sentencing courts the discretion to impose a non-Guideline
sentence based on the courts’ disagreement with Congressional and
Sentencing Commission policy.” Finally, Caballero raises
arguments that are foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C.
§ 1326(b)(2) is a penalty provision and not a separate criminal
offense. The Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.