IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 27, 2008
No. 07-51131
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS RICO-SERRANO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-208-ALL
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Rico-Serrano (Rico) appeals his guilty plea conviction and sentence
for illegally reentering the United States after deportation, in violation of 8
U.S.C. § 1326.
Rico argues on appeal that his above-guidelines sentence of 30 months of
imprisonment was unreasonable because the district court incorrectly applied
the 18 U.S.C. § 3553(a) factors when it improperly focused on his prior offense
and did not consider the specific circumstances underlying his prior offense.
*
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should not be published and is not precedent except under the limited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. 07-51131
Although the district court imposed a sentence that was substantially higher
than the guidelines range, the district court did not abuse its discretion in
sentencing Rico because it properly considered the § 3553(a) factors and provided
sufficiently detailed reasons for arriving at the sentence imposed. See Gall v.
United States, 128 S. Ct. 586, 596-97 (2007); United States v. Williams, ___ F. 3d
___, No. 06-30010, 2008 WL 413303, *6-8 (5th Cir. Feb. 18, 2008). Accordingly,
Rico has failed to demonstrate that his sentence is unreasonable. See Gall, 128
S. Ct. at 594, 596-97.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Rico also
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 argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that
§ 1326(b)(2) is a penalty provision and not a separate criminal offense. United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128
S. Ct. 872 (2008). The judgment of the district court is AFFIRMED.
2