IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2007
No. 06-41324
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAFAEL ALEXANDER RODA-LOPEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-6-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judes.
PER CURIAM:*
Rafael Alexander Roda-Lopez appeals his 47-month sentence following his
guilty plea conviction of being found unlawfully present in the United States
following deportation, in violation of 8 U.S.C. § 1326.
This court accords a presumption of reasonableness to sentences within
the properly calculated guideline range. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). Roda-Lopez argues that his sentence is unreasonable
*
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should not be published and is not precedent except under the limited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. 06-41324
as a matter of law because this presumption of reasonableness effectively
reinstates the mandatory guideline scheme condemned by United States v.
Booker, 543 U.S. 220 (2005). The Supreme Court recently upheld the use of the
presumption. United States v. Rita, 127 S. Ct. 2456, 2465 (2007).
Roda-Lopez challenges only the presumption of reasonableness, which is
“an appellate court presumption.” Id. He does not argue that the district court’s
sentence was unreasonable or otherwise erroneous and, thus, has waived any
challenge to his sentence. See United States v. Thames, 214 F.3d 608, 612 n.3
(5th Cir. 2000); United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th
Cir. 1991). Because Roda-Lopez has not challenged his sentence, this court has
no occasion to review his sentence under the “presumptively reasonable” or any
other standard.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Roda-Lopez
challenges the constitutionality of § 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), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.
2