United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT September 7, 2007
Charles R. Fulbruge III
Clerk
No. 06-50739
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
PEDRO BARRAZA-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:05-CR-1920-ALL)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges
PER CURIAM:*
Pedro Barraza-Rodriguez pleaded guilty to violating 8 U.S.C.
§ 1326 by reentering the United States after having been deported.
The district court sentenced him to 57 months in prison to be
followed by three years of supervised release. He contends his
sentence is unreasonable because the district court failed to
consider his long ties to the United States and his alcoholism as
factors in mitigation of his sentence. He also challenges the
constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
*
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not be published and is not precedent except under the limited circumstances set forth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.
and aggravated felony convictions as sentencing factors rather than
elements of the offense.
Sentences imposed under 8 U.S.C. § 3553(a) are reviewed on
appeal for reasonableness. United States v. Booker, 543 U.S. 220,
261-262 (2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), cert denied, 546 U.S. 828 (2005). As Barraza-Rodriguez
concedes, his first contention, which challenges our precedent
holding sentences within properly calculated guidelines ranges are
presumed to be reasonable, fails in the light of Rita v. United
States, 127 S. Ct. 2456, 2462 (2007).
Barraza-Rodriguez does not maintain his guidelines range was
improperly calculated. Moreover, a sentence within a properly
calculated guidelines range is entitled to great deference.
Mares, 402 F.3d at 520. In reviewing such a sentence, we merely
ask whether the district court abused its discretion in imposing
it. Rita, 127 S. Ct. at 2465. Barraza-Rodriguez has not shown an
abuse of discretion.
Barraza-Rodriguez’s second claim challenges, in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), the constitutionality
of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than as elements of
the offense that must be found by a jury. This issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Barraza-Rodriguez contends Almendarez-Torres was
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incorrectly decided and that a majority of the Supreme Court would
overrule Almendarez-Torres in the 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), cert. denied, 546
U.S. 919 (2005). Barraza-Rodriguez properly concedes his argument
is foreclosed in the light of Almendarez-Torres and circuit
precedent, but raises it here to preserve it for further possible
review.
AFFIRMED
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