United States v. Hernandez-Valdez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 22, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 06-40649
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN HERNANDEZ-VALDEZ, also known as Fermin Aguirre-Virgil,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2515
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Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.

PER CURIAM:*

Martin Hernandez-Valdez (Hernandez) appeals the 37-month

sentence imposed following his guilty plea conviction for illegal

reentry. Hernandez argues that this court’s practice of

affording a presumption of reasonableness to a sentence imposed

within a properly calculated guidelines range violates United

States v. Booker, 543 U.S. 220 (2005). He properly concedes that

this argument is foreclosed, but he raises the issue to preserve

it for further review. He further argues that the sentence

*
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this opinion should not be published and is not precedent except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.
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imposed was unreasonable because the district court failed to

explicitly address the sentencing factors set forth in 18 U.S.C.

§ 3553(a) in light of the mitigating evidence he presented.

Hernandez also argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that his sentence exceeds the statutory maximum

sentence allowed for the 8 U.S.C. § 1326 offense charged in his

indictment.

The record reflects that the district court implicitly

considered the factors set forth in § 3553(a) when it determined

that a 37-month term of imprisonment was a fair and reasonable

sentence in Hernandez’s case. See United States v. Mares, 402

F.3d 511, 518-19 (5th Cir. 2005); see also United States v.

Smith, 440 F.3d 704, 707 (5th Cir. 2006). Hernandez has not

shown that this sentence was unreasonable or that this court

should not defer to the district court’s determinations at

sentencing. See Mares, 402 F.3d at 519.

Hernandez’s challenge to § 1326(b) is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Hernandez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, 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. 2005). Hernandez

properly concedes that his argument is foreclosed in light of
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Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

AFFIRMED.