IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-41028 F I L E D
Conference Calendar August 8, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
ZEFERINO ORTEGA-ESPINOZA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-331-1
Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Zeferino Ortega-Espinoza
(Ortega) seeks to preserve for further review his contention that his sentence is
unreasonable because this court’s post-Booker** rulings have effectively
reinstated the mandatory Sentencing Guideline regime condemned in Booker.
Ortega concedes that his argument is foreclosed by United States v. Mares, 402
*
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should not be published and is not precedent except under the limited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.
**
United States v. Booker, 543 U.S. 220 (2005).
No. 06-41028
F.3d 511 (5th Cir. 2005), and its progeny, which have outlined this court’s
methodology for reviewing sentences for reasonableness. In light of Rita v.
United States, 127 S. Ct. 2456, 2462-68 (2007), the issue remains foreclosed.
Ortega also raises arguments that are foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a
penalty provision and not a separate criminal offense. The Government’s motion
for summary affirmance is GRANTED, and the judgment of the district court is
AFFIRMED.
2