IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2007
No. 06-51621
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE ANTONIO LARA-LOPEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:06-CR-324-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jorge Antonio Lara-Lopez appeals the 57-month sentence imposed
following his guilty plea conviction for illegal reentry. His sentence is within the
applicable guideline range.
Although Lara-Lopez initially argued that the presumption of
reasonableness accorded by this court to sentences within the guideline range
violated United States v. Booker, 543 U.S. 220 (2005), in his reply brief he
*
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should not be published and is not precedent except under the limited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. 06-51621
concedes that the argument is confuted by the Supreme Court’s recent decision
in Rita v. United States, 127 S. Ct. 2456, 2462 (2007) (holding that a “court of
appeals may apply a presumption of reasonableness to a district court sentence
that reflects a proper application of the Sentencing Guidelines”). He argues,
however, that the district court did not sufficiently explain its reasons for
rejecting mitigating factors that he contends justified a below-guideline
sentence.
Lara-Lopez has failed to show that his sentence is unreasonable.
Immediately before the district court sentenced Lara-Lopez, his counsel
expressly argued that Lara-Lopez was entitled to a below-guideline sentence on
the basis of his close ties to the United States and because his sentencing range
was unduly high given the nature of his prior offenses. The circumstances thus
make clear that the district court sufficiently considered Lara-Lopez’s
arguments. See Rita, 127 S. Ct. at 2469 (“Where a matter is as conceptually
simple as in the case at hand and the record makes clear that the sentencing
judge considered the evidence and arguments, we do not believe the law requires
the judge to write more extensively.”). Moreover, because the district court
imposed a sentence within the guidelines range, this court infers that the district
court considered the necessary sentencing factors. See United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Lara-Lopez
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), petition for cert. filed (Aug. 28, 2007) (No. 07-
6202),and Lara-Lopez concedes the foreclosure.
AFFIRMED.
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