United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-41381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FRANCISCO FLORES, also known as Elisio Almasan-Tirado,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(1:06-CR-293)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Francisco Flores, having pleaded guilty to illegal
reentry, in violation of 8 U.S.C. § 1326, challenges his sentence
on two bases.
He first challenges its reasonableness, pursuant to United
States v. Booker, 543 U.S. 220 (2005) (requiring, inter alia,
“reasonableness” review of post-Booker sentences, to be guided by
the factors stated in 18 U.S.C. § 3553(a)). The district court’s
having granted Flores’ objection to the use of a prior conviction
*
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this opinion should not be published and is not precedent except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.
in determining his criminal history score, his advisory Guidelines
range was 70-87 months. The imposed 72-month sentence was at the
low end of this range.
Because the sentence was within the properly-calculated
Guideline range (Flores does not maintain otherwise), it is
presumed reasonable. E.g., United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). Notwithstanding his claim that the district
court failed to properly consider the sentencing factors under 18
U.S.C. § 3553(a), such a sentence is afforded “great deference”,
and we infer the sentencing court “has considered all the [§
3553(a)] factors for a fair sentence”. United States v. Mares, 402
F.3d 511, 519-20 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Flores has failed to rebut his sentence’s presumed reasonableness.
See Alonzo, 435 F.3d 554-55. Indeed, even though Flores contends
this presumption of reasonableness violates Booker, he properly
concedes this contention is foreclosed; he raises the presumption
issue only to preserve its further review.
Flores also challenges, in the light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 8 U.S.C. § 1326(b)’s treatment of
prior felony and aggravated-felony convictions as sentencing
factors, rather than elements of the offense. As he concedes, this
challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). See, e.g., United States v. Garza-Lopez, 410
2
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Nonetheless, he raises it here to preserve it for further review.
AFFIRMED
3