United States v. Pena-Hernandez , 243 F. App'x 883 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 06-41018                           F I L E D
    Summary Calendar
    September 27, 2007
    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    JOSE FRANKLIN PENA-HERNANDEZ,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    No.5:06-CR-291-ALL
    Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Jose Pena-Hernandez appeals his guilty-plea conviction of and sentence
    for illegally reentering the United States in violation of 8 U.S.C. § 1326. He
    raises two arguments, both of which he concedes are foreclosed. First, he con-
    *
    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    should not be published and is not precedent except under the limited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. 06-41018
    tends that the presumption of reasonableness afforded by this court to sentences
    within the sentencing guideline range is unconstitutional under United States
    v. Booker, 
    543 U.S. 220
    (2005). This argument is confuted by Rita v. United
    States, 
    127 S. Ct. 2456
    , 2462 (2007), which holds 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.”
    In light of Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), Pena-Hernandez
    challenges the constitutionality of § 1326(b)’s treatment of prior felony and ag-
    gravated felony convictions as sentencing factors rather than elements of the of-
    fense 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), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). Ac-
    cord United States v. Galvan-Lozano, No. 06-41297, 
    2007 U.S. App. LEXIS 21849
    , at *1-*2 (5th Cir. Sept. 12, 2007) (per curiam).
    AFFIRMED.
    2
    

Document Info

Docket Number: 06-41018

Citation Numbers: 243 F. App'x 883

Judges: Barksdale, Per Curiam, Reavley, Smith

Filed Date: 9/27/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023