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. 06-41148
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS TULIO ZAYAS, also known as Salvador Pinado-Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-602-ALL
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Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Marcos Tulio
Zayas 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. Zayas concedes that his
argument is foreclosed by United States v. Mares, 402 F.3d 511
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005), and its progeny,
which have outlined this court’s methodology for reviewing
*
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this opinion should not be published and is not precedent except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. 06-41148
-2-
sentences for reasonableness. Zayas also preserves for further
review his contention that his sentence is unreasonable because
the illegal reentry guideline is unduly severe. Zayas 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, Zayas
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.