IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-20947 F I L E D
Summary Calendar September 28, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSCAR CHAVEZ, also known as Oscar Enrique Chavez
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-185-ALL
Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
Oscar Chavez, an alien (a native and citizen of Mexico), pleaded guilty to
violating 8 U.S.C. § 1326 by illegally reentering the United States after being
deported following a Texas felony conviction. In November 2006, the district
court sentenced him to fifty-seven months in prison and he now appeals. We
affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20947
Chavez first contends that the district court erred when it adopted the
presentence report’s recommendation that his base offense level be enhanced
because of his prior Texas conviction for a crime of violence, burglary of a
habitation (for which he was sentenced to two years’ imprisonment). This court
has ruled that burglary of a habitation under Texas law is a crime of violence
within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Valdez-
Maltos, 443 F.3d 910, 911 (5th Cir. 2006), cert. denied, 127 S.Ct. 265 (2006);
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.
denied, 126 S.Ct. 1398 (2006). Consequently, Chavez’s claim that his offense-
level enhancement was improper is foreclosed.
Chavez also argues that his sentence is unreasonable because the district
court did not consider factors that would justify a lower sentence. We do not
have jurisdiction to review the district court’s denial of Chavez’s motion for a
downward departure. United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.
2007), petition for cert. filed (May 21, 2007) (No. 06-11834). However, a
defendant like Chavez whose motion for a downward departure has been
overruled may still argue on appeal that his sentence was unreasonable because
the district court “failed adequately to consider factors counseling in favor of a
downward departure.” Id.
This court reviews a sentence within a properly calculated guideline range
for reasonableness. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005). A sentence is presumptively reasonable if it falls within a properly
calculated guideline range. Rita v. United States, 127 S.Ct. 2456, 2462-63
(2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The
presumption of reasonableness is rebutted only if the district court commits clear
error in the exercise of its broad sentencing discretion by failing to account for
a statutory sentencing factor that should have received significant weight, by
giving significant weight to an irrelevant or improper statutory sentencing
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No. 06-20947
factor, or by committing a clear error of judgment in balancing the statutory
sentencing factors. Nikonova, 480 F.3d at 376.
Chavez claims that the district court erred by giving too little weight to his
argument that he reentered the United States to support his girlfriend, and their
child, and by failing to adequately consider his cultural assimilation into life in
the United States. However, our review of the record does not reveal that the
district court failed to address or improperly balance the sentencing factors set
forth in section 3553(a). Moreover, when a sentence is within a properly
calculated guideline range, this court infers that the district court considered all
of the guideline factors. United States v. Candia, 454 F.3d 468, 473 (5th Cir.
2006).
Chavez presented no evidence that would lead to a conclusion that his
illegal reentry into the United States, ostensibly to fulfill his support obligations,
constituted circumstances “special enough that, in light of § 3553(a), they require
a sentence lower than the sentence the Guidelines provide.” Rita, 127 S.Ct. at
2470. Additionally, we are unable to conclude that the district court abused its
discretion in its weighing of Chavez’s significant criminal history. Having
considered Chavez’s arguments, the district court crafted a sentence at the
bottom of the advisory guideline range that it believed would promote respect for
the law. Chavez has not shown that sentence to be unreasonable.
Finally, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Chavez
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This court has held that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007).
The judgment of the district court is AFFIRMED.
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