United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2007
Charles R. Fulbruge III
Clerk
No. 06-41127
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ISAIAS ALVARADO-HUERTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1569-ALL
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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Jose Isaias Alvarado-Huerta appeals from his guilty plea
conviction and 57-month sentence for being an alien found
unlawfully in the United States after deportation, in violation
of 8 U.S.C. § 1326. Alvarado-Huerta argues that his sentence is
contrary to United States v. Booker, 543 U.S. 220 (2005), and
unreasonable as a matter of law. He contends that this court’s
post-Booker decisions have effectively reinstated the mandatory
guideline scheme condemned by Booker and further argues that,
post-Booker, a district court should be allowed to disagree with
*
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this opinion should not be published and is not precedent except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. 06-41127
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policy decisions of the Sentencing Commission when imposing a
sentence.
Alvarado-Huerta concedes that his argument that his sentence
is contrary to Booker 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 sentences for reasonableness. Furthermore, Alvarado-
Huerta acknowledges that his assertion that the district court
should be allowed to disagree with the policy decisions of the
Sentencing Commission 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 upon the courts’ disagreement with
Congressional and Sentencing Commission policy.” Alvarado-Huerta
raises these issues specifically to preserve them for further
review.
Alvarado-Huerta also raises constitutional challenges to
§ 1326(b), which are foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Alvarado-Huerta
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).
No. 06-41127
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Alvarado-Huerta 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.
The judgment of the district court is AFFIRMED.