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. 06-40393
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CARMEN MARITZA DIAZ-BEARD
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2362-ALL
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Carmen Maritza Diaz-Beard (Diaz) appeals the 41-month term
of imprisonment imposed upon her guilty plea to illegal reentry
following deportation. She contends that her sentence is
unreasonable because of the deference given by this court to
sentences within a properly-calculated guidelines range.
Specifically, she challenges the presumption of reasonableness
applied to guidelines sentences, see United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006), and our precedent forbidding a
sentencing court from imposing a nonguidelines sentence based
*
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this opinion should not be published and is not precedent except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. 06-40393
-2-
solely upon a policy disagreement with a sentence enhancement
recommended by the Guidelines. See United States v. Tzep-Mejia,
461 F.3d 522, 527 (5th Cir. 2006). Conceding that her arguments
are foreclosed by circuit precedent, Diaz seeks only to preserve
them for appeal.
Diaz further asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(a) and (b) cause the
statute to be unconstitutional. This argument is also
foreclosed. See Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Diaz 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.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Diaz properly concedes that
the argument is foreclosed and raises it here to preserve it for
further review.
The judgment of the district court is AFFIRMED.