United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2007
Charles R. Fulbruge III
Clerk
No. 05-41568
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR ESPINOSA-CONTRERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1004-ALL
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Victor Espinosa-Contreras (Espinosa) appeals the 46-month
sentence of imprisonment imposed following his guilty plea
conviction for illegal reentry following deportation. Espinosa
argues that the district court did not address all of the
sentencing factors listed in 18 U.S.C. § 3553(a) in imposing
sentence and did not address the reasons that Espinosa advanced
for a downward departure or variance from the Guidelines.
*
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this opinion should not be published and is not precedent except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. 05-41568
-2-
The Government argues that the court lacks jurisdiction to
review the district court’s discretionary denial of Espinosa’s
motion for a downward departure or variance.
The court lacks jurisdiction to review a discretionary
decision not to depart downward from the guideline range.
However, the court must still determine whether the imposition of
a guideline sentence instead of a non-guideline sentence was
reasonable. United States v. Nikonova, 480 F.3d 371, 375 (5th
Cir. 2007).
Espinosa has demonstrated no error in the guidelines
computation, and the district court gave appropriate reasons for
the sentence. We therefore give great deference to the sentence
imposed. United States v. Mares, 402 F.3d 511, 520 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005). Given Espinosa’s serious
prior drug conviction and his illegal return to the United States
after serving a 40-month sentence and being deported to Mexico,
and the deference due to the sentencing judge’s discretion, the
sentence imposed is not unreasonable.
Espinosa’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Espinosa contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres 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.
No. 05-41568
-3-
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Espinosa 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.