United States v. Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2007

Charles R. Fulbruge III
Clerk
No. 06-30478
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CECILIO PEREZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CR-295-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Cecilio Perez appeals his guilty-plea conviction and

sentence for illegal reentry following deportation in violation

of 8 U.S.C. § 1326. He contends that the presumption of

reasonableness this court accords sentences imposed within the

advisory guideline range erroneously constrains the district

court’s discretion. Specifically, Perez argues that the validity

of this court’s sentencing framework after United States v.

Booker, 543 U.S. 220 (2005), is under consideration by the

Supreme Court in Rita v. United States, 127 S. Ct. 551

*
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this opinion should not be published and is not precedent except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. 06-30478
-2-

(U.S. Nov. 3, 2006) (No. 06-5754), and Claiborne v. United

States, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5618). Thus,

he argues that if the Supreme Court were to find this framework

inconsistent with Booker, he would be entitled to resentencing.

Because an intervening Supreme Court case explicitly or

implicitly overruling prior precedent is required to alter this

court’s precedent, the grants of certiorari in Rita and Claiborne

have no impact on this court’s precedent. See United States v.

Short, 181 F.3d 620, 624 (5th Cir. 1999). In the instant case,

the district court considered the Guidelines and determined that

a sentence at the bottom of the guideline range was appropriate.

Because the court exercised its discretion to impose a sentence

within a properly calculated guideline range, this court may

infer, in its reasonableness review, that the court considered

all the factors for a fair sentence set forth in the Guidelines.

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). This

court has examined the record and concludes that the sentence

imposed by the district court is reasonable.

AFFIRMED.