IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2008
No. 07-50449
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS ARTURO CASTRO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-2343-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Luis Arturo Castro appeals his guilty plea conviction and sentence for
illegally reentering the United States following deportation, in violation of 8
U.S.C. § 1326.
Castro argues that his within-guidelines sentence was unreasonable
because the Guidelines overstated his criminal history and failed to take into
consideration his cultural assimilation and because neither the Guidelines nor
the district court properly took into consideration the factors in 18 U.S.C.
*
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should not be published and is not precedent except under the limited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. 07-50449
§ 3553(a). He further contends that the district court did not give sufficient
reasons for his sentence and that under Rita v. United States, 127 S. Ct. 2456
(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), a presumption of
reasonableness does not apply to his sentence.
The district court committed no significant procedural error as it properly
calculated the guideline range, did not treat the Guidelines as mandatory, and
considered the § 3553(a) factors. See Gall v. United States, 128 S. Ct. 586, 597
(2007). Castro has not shown that the district court’s statement of reasons
constituted plain error. United States v. Izaguirre-Losoya, 219 F.3d 437, 441
(5th Cir. 2000). Where, as here, the district court imposes a sentence within a
properly calculated guidelines range, the sentence is entitled to a rebuttable
presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551,
553-54 (5th Cir. 2006); see also Rita, 127 S. Ct. at 2462. Castro has failed to
demonstrate that his sentence is unreasonable. See Gall, 128 S. Ct. at 597.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Castro 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), cert. denied, ___ S. Ct. ___, No. 07-6202, 2008 WL 59441 (Jan. 7,
2008). The judgment of the district court is AFFIRMED.
2