United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 24, 2007
Charles R. Fulbruge III
Clerk
No. 06-40773
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO MALDONADO-MALAGON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-1065-1
--------------------
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Armando Maldonado-Malagon was convicted of violating
8 U.S.C. § 1326 by being found in the United States without
permission, following deportation. He now appeals.
Maldonado-Malagon argues that his sentence is unreasonable
in light of United States v. Booker, 543 U.S. 220 (2005), because
the district court failed to consider his arguments for a below-
guidelines sentence, failed to analyze on the record the
sentencing factors in 18 U.S.C. § 3553(a), and gave too much
weight to the advisory Sentencing Guidelines. The 46-month term
*
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this opinion should not be published and is not precedent except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. 06-40773
-2-
of imprisonment imposed in Maldonado-Malagon’s case fell within
his properly calculated guidelines range and is entitled to a
presumption of reasonableness pursuant to United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).1 Maldonado-Malagon
has not demonstrated that the district court clearly erred in
exercising its broad sentencing discretion by imposing a sentence
that failed to “account for a factor that should have received
significant weight,” gave “significant weight to an irrelevant or
improper factor,” or represented “a clear error of judgment in
balancing the sentencing factors.” United States v. Nikonova,
480 F.3d 371, 376 (5th Cir. 2007). He has not rebutted the
presumption of reasonableness. Id.
Maldonado-Malagon also argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the 46-month term of
imprisonment imposed in his case exceeds the statutory maximum
sentence allowed for the § 1326(a) offense charged in his
indictment. He challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
1
Maldonado-Malagon argues that his sentence should not be
afforded a presumption of reasonableness. He raises the issue to
preserve it for en banc or Supreme Court review in light of the
Supreme Court’s grant of certiorari in United States v. Rita, 127
S. Ct. 551 (2006). The Supreme Court decided Rita on June 21,
2007, and held that a “court of appeals may apply a presumption
of reasonableness to a district court sentence that reflects a
proper application of the Sentencing Guidelines.” Rita v. United
States, __ S. Ct. __, 2007 WL 1772146 at *6-11, quote at *6
(2007). In light of that decision, Maldonado-Malagon’s argument
is foreclosed. Maldonado-Malagon’s motion for this court to stay
his appeal pending a decision in Rita is denied as moot.
No. 06-40773
-3-
sentencing factors rather than elements of the offense that must
be found by a jury. Maldonado-Malagon’s constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although he 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). Maldonado-
Malagon 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; MOTION DENIED.