United States v. Gomez-Martinez , 267 F. App'x 330 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2008
No. 06-51013
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE ALFREDO GOMEZ-MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-130-ALL
Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Jorge Alfredo Gomez-Martinez appeals the 57-month sentence imposed
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. His sentence falls within the applicable advisory sentencing guidelines
range, and he does not challenge the calculation of that range. He instead
argues that the presumption of reasonableness afforded sentences within the
applicable guidelines range under United States v. Mares, 402 F.3d 511 (5th Cir.
*
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should not be published and is not precedent except under the limited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. 06-51013
2005), and its progeny, violates United States v. Booker, 543 U.S. 220 (2005).
This argument is confuted, however, by the Supreme Court’s decision in Rita v.
United States, 127 S. Ct. 2456, 2462 (2007), which held that a “court of appeals
may apply a presumption of reasonableness to a district court sentence that
reflects a proper application of the Sentencing Guidelines.”
Gomez-Martinez alternatively argues that the district court should have
sentenced him below the guidelines range in light of the circumstances of his
reentry, his employment and family ties in Mexico, and his difficulties in
childhood. This court reviews “the district court’s imposition of a guideline
sentence instead of a non-guideline sentence” for reasonableness. United States
v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007). The
district court observed that Gomez-Martinez had not learned to abide by the law
despite his having served a prior 46-month sentence for illegal reentry. The
court also noted that it had considered both Gomez-Martinez’s particular
circumstances and the 18 U.S.C. § 3553(a) factors in determining Gomez-
Martinez’s sentence. The district court imposed a sentence at the bottom of the
guidelines range, and Gomez-Martinez has failed to show that the sentence is
unreasonable. See Mares, 402 F.3d at 518-19. Finally, in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), Gomez-Martinez 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. As Gomez-Martinez concedes, this issue is foreclosed.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied,
128 S. Ct. 872 (2008).
AFFIRMED.
2