United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS 30, 2007
July
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40839
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARMANDO ZAMORANO-BENITEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2667-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Armando Zamorano-Benitez appeals his guilty-plea conviction and
sentence for being unlawfully present in the United States following deportation.
The district court enhanced Zamorano’s sentence based upon its determination
that his prior California conviction for unlawful sexual intercourse with a minor
was a conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A).
Zamorano argues that the enhancement was improper because the statute under
*
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should not be published and is not precedent except under the limited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. 06-40839
which he was convicted sets the legal age for consent to sexual activity at 18
years of age while the Model Penal Code and the majority of the states set the
legal age of consent for sexual activity at 16 years of age or younger.
Zamorano’s prior conviction was under Cal. Penal Code Ann. § 261.5.
Under a common sense approach, Zamorano’s conviction was for the enumerated
offenses of statutory rape and sexual abuse of a minor and, accordingly, a crime
of violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2, comment. (n.1(b)(iii)); United
States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005).
Zamorano asserts that his 46-month guidelines sentence violates United
States v. Booker, 543 U.S. 220 (2005) and is unreasonable. He also asserts that
his sentence is unreasonable under the current regime of reasonableness review
because the district court failed to consider his arguments based on cultural
assimilation and family ties that warranted a sentence below the advisory
guidelines range.
The presumption of reasonableness afforded a sentence within a properly
calculated advisory guidelines range is consistent with Booker. See Rita v.
United States,127 S. Ct. 2456, 2463-68 (2007). The record reflects that the
district court considered Zamorano’s objections and arguments, the
recommendations of the presentence report, the applicable guidelines range, and
the 18 U.S.C. § 3553(a) factors. Because the district court exercised its
discretion to impose a sentence within a properly calculated guidelines range,
the sentence was presumptively reasonable, and we may infer that the district
court considered all the factors for a fair sentence. Rita, 127 S. Ct. at 2463-68;
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005). Zamorano did not demonstrate that
his sentence was unreasonable. See United States v. Nikonova, 480 F.3d 371,
376 (5th Cir. 2007), petition for cert. filed (May 21, 2007).
Zamorano also contends that the felony and aggravated felony provisions
contained in 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New
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No. 06-40839
Jersey, 530 U.S. 466 (2000). This argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998). Although Zamorano 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). Zamorano 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.
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