United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 1, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-51357
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LEOPOLDO ALMANZA-SILVA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-857
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Leopoldo Almanza-Silva pleaded guilty to violating 8 U.S.C. § 1326 by
reentering the United States after having been deported. His first contention,
which challenges our precedents holding that properly calculated guidelines
sentences are presumed to be reasonable, fails in light of the decision in Rita v.
United States, 2007 WL 1772146 (U.S. June 21, 2007) (No. 06-5754).
*
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should not be published and is not precedent except under the limited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. 06-51357
Almanza-Silva’s second argument is that his sentence is unreasonable
because he requested a sentence below the guidelines range and the district
court imposed sentence without considering all of his reasons for a lower
sentence and without giving sufficient weight to his arguments about the
18 U.S.C. § 3553 factors. More specifically, the three errors that Almanza-Silva
attributes to the district court are that it gave: (1) too little weight to his
argument that he reentered the United States to help his family, (2) too much
weight to an 18-year-old felony conviction, and (3) too little weight to his relative
lack of criminal history. He does not contend that the guidelines range was
improperly calculated.
A sentence within a properly calculated guidelines range is entitled to
great deference. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
In reviewing such a sentence, we merely ask whether the district court abused
its discretion in imposing it. Rita, 2007 WL 1772146, *9.
We reject Almanza-Silva’s contentions. Our review of the record does not
reveal that the district court failed to address, or improperly balanced, the
sentencing factors set forth in § 3553(a).
Almanza-Silva presented no evidence that his illegal reentry into the
United States to help his family in Mexico constituted circumstances “special
enough that, in light of § 3553(a), they require a sentence lower than the
sentence the Guidelines provide.” Rita, 2007 WL 1772146, * 14. Additionally,
we are unable to conclude that the district court abused its discretion in its
weighing of Almanza-Silva’s criminal history, not least his repeated illegal
entries into the United States. Almanza-Silva has not shown that his sentence
was unreasonable.
Almanza-Silva also argues that the district court failed to give reasons for
his sentence. Because he did not raise this objection in the district court, it is
subject to plain-error review on appeal. See United States v. Izaguirre-Losoya,
219 F.3d 437, 440 (5th Cir. 2000). Section 3553(c) requires that a district court
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No. 06-51357
state its reasons for imposing a guideline sentence. The district court satisfied
its obligation under § 3553(c) by adopting the presentence report and the
guidelines calculations. See United States v. Hernandez, 457 F.3d 416, 424 (5th
Cir. 2006). Consequently, we find no err.
Finally, Almanza-Silva's constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S.224, 235 (1998).
Although he contends that Almendarez-Torres was incorrectly decided and has
been undermined by 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.
2005). Almanza-Silva 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.
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