IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2008
No. 06-41771 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR HUGO ALVARADO-AYALA, also known as Jose Luis Romero
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2683-ALL
Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Victor Hugo Alvarado-Ayala, an alien, pleaded guilty to violating 8 U.S.C.
§ 1326 by illegally reentering the United States after being deported. In
December 2006 the district court sentenced him to 41 months’ imprisonment,
and he now appeals. We affirm.
Alvarado-Ayala claims that the circumstances attendant to his
manslaughter conviction counsel in favor of a sentence below the guidelines
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41771
range. He asserts that his manslaughter conviction was, ultimately, the product
of a mistake that Oregon authorities made when they improperly prosecuted him
for murder although he was a juvenile. The ensuing murder conviction was later
reduced to first degree manslaughter as the result of a stipulation between
Alvarado-Ayala and the State of Oregon in a federal habeas proceeding.
We do not have jurisdiction to review the district court’s denial of
Alvarado-Ayala’s motion for a downward departure. United States v. Nikonova,
480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S.Ct. 163 (2007). There is an
exception to this rule where the defendant points to something in the record
indicating that the district court held an erroneous belief that it lacked the
authority to depart. United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th
Cir. 1999). Based on a review of the record, we see no indication that the district
court believed that it lacked the authority to grant a downward departure. Nor
does anything in the record even suggest that the district court believed it lacked
the authority to impose a below-guideline sentence under United States v.
Booker, 543 U.S. 220 (2005). Nevertheless, a defendant, like Alvarado-Ayala,
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.”
Nikonova, 480 F.3d at 375.
This court reviews a sentence within a properly calculated guideline range
for reasonableness. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005). In reviewing for reasonableness, an appellate court “merely asks whether
the trial court abused its discretion.” Rita v. United States, 127 S.Ct. 2456, 2465
(2007). It is proper for an appellate court to rebuttably presume the
reasonableness of a district court’s sentence which reflects a proper application
of the Sentencing Guidelines. Id. at 2462-63. A district court’s sentencing
decision is entitled to great deference. Gall v. United States, 128 S.Ct. 586, 597-
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98 (2007) (fact that appellate court might reasonably impose different sentence
is insufficient justification for reversal of district court).
Our review of the record does not reveal that the district court committed
any procedural error or failed to address or improperly balanced the sentencing
factors set forth in 18 U.S.C. § 3553(a). Moreover, when a sentence is within a
properly calculated guidelines range, this court infers that the district court
considered all of the guidelines factors. United States v. Candia, 454 F.3d 468,
473 (5th Cir. 2006). Having considered Alvarado-Ayala’s arguments, the district
court crafted a sentence at the bottom of the advisory guideline range that it
believed to be just. The district court did not abuse its discretion in doing so.
Alvarado-Ayala alternatively contends, for the first time on appeal, that
his sentence is infected with error because this court’s post-Booker jurisprudence
erroneously and unduly restricted the ability of district courts to give
nonguideline sentences. As neither this contention nor anything like it was
raised below, our review is only for plain error. There is none. It is not clear or
plain that our post-Booker jurisprudence is erroneous in this respect. Nor does
anything in the record suggest that the district court likely would have given a
lesser sentence but for some such aspect of our post-Booker jurisprudence (or
that it otherwise felt constrained to give a within guideline range sentence
despite believing that a lesser sentence would be more appropriate under 18
U.S.C. § 3553(a) apart from the guidelines). That the district court consciously
elected to sentence within the guidelines does not suffice to demonstrate
reversible error. Nor may error be predicated on the fact that this court on
appeal affords a rebuttable presumption of reasonableness to a district court’s
sentence that reflects a proper application of the guidelines, despite the fact that
it “may be correct that the presumption will encourage sentencing judges to
impose Guidelines sentences.” Rita, 127 S.Ct. at 2467.
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No. 06-41771
Finally, light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Alvarado-
Ayala 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 stated that
this issue is “fully foreclosed from further debate.” United States v. Pineda-
Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan.
7, 2008).
AFFIRMED.
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