IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2008
No. 07-51246
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EVA CERVANTES-QUINTERO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-653-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Eva Cervantes-Quintero appeals the sentence imposed following her guilty
plea conviction for illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. She argues that her guidelines sentence was unreasonable because it
was greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a)
and that her guidelines sentence is not entitled to a presumption of
reasonableness.
*
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should not be published and is not precedent except under the limited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. 07-51246
The abuse-of-discretion standard of review applies to appellate review of
sentencing decisions. Gall v. United States, 128 S. Ct. 586, 594 (2007). A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir.2006); see also Gall, 128 S. Ct. at 594.
Cervantes-Quintero argues that her guidelines sentence is not entitled to
a presumption of reasonableness because U.S.S.G. § 2L1.2 is not “empirically
supported.” As she did not raise this argument in the district court, it is
reviewed for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272
(5th Cir. 2005). Cervantes-Quintero has failed to show plain error. See United
States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008).
Accordingly, Cervantes-Quintero’s within guidelines sentence is presumed
reasonable, and she has failed to overcome that presumption. See Alonzo, 435
F.3d at 554. To the extent Cervantes-Quintero argues that her sentence is
unreasonable based upon the factors she presented to the district court, we
discern no reason to disturb the district court’s exercise of its discretion. See
Campos-Maldonado, 531 F.3d at 339.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Cervantes-
Quintero challenges the sentence imposed for her conviction by questioning 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. As Cervantes-Quintero concedes, this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied,
128 S. Ct. 872 (2008).
AFFIRMED.
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