United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41281
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RIGOBERTO ALEXANDER RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-409-1
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rigoberto Alexander Rodriguez pleaded guilty to illegally reentering the
United States following deportation and was sentenced to a 60-month term of
imprisonment. Rodriguez argues that the district court erred by enhancing his
offense level based on its determination that Rodriguez’s prior Texas conviction
for attempted kidnapping was a crime of violence under U.S.S.G. § 2L1.2;
*
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should not be published and is not precedent except under the limited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. 06-41281
however, he concedes in his reply brief that this argument is foreclosed by
United States v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th Cir. 2007).
Rodriguez also argues that his sentence is unreasonable in light of United
States v. Booker, 543 U.S. 220 (2005), but he again concedes that his argument
is foreclosed under our precedent. See United States v. Mares, 402 F.3d 511, 518-20
and United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The Supreme Court
has rejected Rodriguez’s contention that his sentence within the advisory
Sentencing Guidelines range should not be accorded a presumption of
reasonableness. See Rita v. United States, 127 S. Ct. 2456 (2007). Our review
of the record leads us to conclude that Rodriguez’s sentence is reasonable.
Rodriguez also argues that the felony and aggravated felony provisions of
8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), and subsequent Supreme Court decisions. Rodriguez’s
constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Rodriguez 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); see also Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United
States v. Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007).
Rodriguez 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.
2