IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-10826 F I L E D
Summary Calendar September 26, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
ROBERTO LOPEZ-MORENO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-249-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Lopez-Moreno (Lopez) pleaded guilty to illegal reentry into the
United States following removal subsequent to a conviction for an aggravated
felony. This court vacated his sentence and remanded for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005). He now appeals
the sentence imposed on remand.
For the first time in this, his second appeal, Lopez argues that the district
court plainly erred by applying a 16-level enhancement for his being removed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-10826
following a conviction for a crime of violence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). He asserts that his prior Texas conviction for aggravated
assault was not a conviction for a crime of violence.
Because Lopez could have raised this issue in his original appeal but did
not, consideration of this issue is barred by the mandate rule. See United States
v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). While he acknowledges the mandate
rule, Lopez argues that this issue falls under the manifest injustice exception to
that rule. Lopez’s prior conviction, however, was a conviction under TEX. PENAL
CODE ANN. § 22.02(a)(2), and convictions under that statute are convictions for
a crime of violence under § 2L1.2(b)(1)(A)(ii). See United States v. Guillen-
Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007). Accordingly, the manifest
injustice exception does not apply, and consideration of this issue is barred by
the mandate rule. See United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002).
Lopez argues that the sentence imposed on remand was unreasonable.
His sentence was within the guidelines range, and while he acknowledges that
we held that sentences within the guidelines range are presumptively
reasonable in United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), he
argues that Alonzo was wrongly decided and that no presumption should apply.
As Lopez concedes, this argument is foreclosed. See Rita v. United States, 127
S. Ct. 2456, 2462-65 (2007); Alonzo, 435 F.3d at 554. Lopez also asserts that his
sentence was unreasonable because the district in which he was convicted does
not have a fast-track program. As Lopez concedes, this argument is also
foreclosed. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Lopez maintains that his sentence was unreasonable because while he had
a criminal history category of VI, he had not previously been sentenced to a term
of imprisonment longer than 270 days. A sentence within the guidelines range
is presumptively reasonable. Alonzo, 435 F.3d at 554. It is rare for this court
to hold that such a sentence is unreasonable. Id. While Lopez was not
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No. 06-10826
previously sentenced to a term of imprisonment longer than 270 days, he has an
extensive criminal history, including convictions for aggravated assault, evading
arrest, assault, driving while intoxicated, and possession of a prohibited weapon,
as well as multiple drug convictions. Lopez has not shown that his sentence was
unreasonable. See id. at 554-55.
Lopez argues that the treatment of 8 U.S.C. §§ 1326(b)(1) & (2) as
sentencing factors was improper as a matter of statutory interpretation and
constitutional law. This court has held that this issue is “fully foreclosed from
further debate.” United States v. Pineda-Arrellano, ___ F.3d. ___, 2007 WL
2033992, *1 (5th Cir. July 17, 2007).
AFFIRMED.
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