530 F.3d 381 | 5th Cir. | 2007
Before GARWOOD, CLEMENT and PRADO, Circuit Judges. PER CURIAM: [*]
Jose Bernardo Rodriguez-Rodriguez was convicted of one count of having been found in the United States following deportation and sentenced to serve 57 months in prison. Rodriguez-Rodriguez argues that his bottom of the guideline range sentence (imposed July 2006) is unreasonable because he requested a sentence below the guidelines based on the 18 U.S.C. § 3553 factors and that the district court imposed the sentence without considering the mitigating factor or the nature and circumstances of the offense. The record shows that Rodriguez-Rodriguez’s factual assertion that the district court did not consider the mitigating circumstance presented at sentencing is factually incorrect. Rodriguez- Rodriguez has not shown that the sentence imposed by the district court is unreasonable. See United States v. Mares , 402 F.3d 511, 518-19 (5th Cir. 2005).
Rodriguez-Rodriguez 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. Rodriguez-Rodriguez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998). Although he contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Alemdarez-Torres is light of Apprendi v. New Jersey , 530 U.S. 460 (2000), we have repeatedly rejected such arguments on the basis that Alemdarez-Torres remains binding. See United States v. Garza-Lopez , 410 F.3d 268, 276 (5th Cir. 2005). Rodriguez-Rodriguez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for future review.
The judgment of the district court is
AFFIRMED.
2
NOTES
[*] Pursuant to 5 TH C IR . R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.