United States v. Rodriguez , 235 F. App'x 986 ( 2007 )


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  •                                                                 United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    August 21, 2007
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 06-41281
    Conference Calendar
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    RIGOBERTO ALEXANDER RODRIGUEZ
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:06-CR-409-1
    Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Rigoberto Alexander Rodriguez pleaded guilty to illegally reentering the
    United States following deportation and was sentenced to a 60-month term of
    imprisonment. Rodriguez argues that the district court erred by enhancing his
    offense level based on its determination that Rodriguez’s prior Texas conviction
    for attempted kidnapping was a crime of violence under U.S.S.G. § 2L1.2;
    *
    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    should not be published and is not precedent except under the limited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. 06-41281
    however, he concedes in his reply brief that this argument is foreclosed by
    United States v. Iniguez-Barba, 
    485 F.3d 790
    , 791-93 (5th Cir. 2007).
    Rodriguez also argues that his sentence is unreasonable in light of United
    States v. Booker, 
    543 U.S. 220
     (2005), but he again concedes that his argument
    is foreclosed under our precedent. See United States v. Mares, 
    402 F.3d 511
    , 518-20
    and United States v. Alonzo, 
    435 F.3d 551
    , 554 (5th Cir. 2006). The Supreme Court
    has rejected Rodriguez’s contention that his sentence within the advisory
    Sentencing Guidelines range should not be accorded a presumption of
    reasonableness. See Rita v. United States, 
    127 S. Ct. 2456
     (2007). Our review
    of the record leads us to conclude that Rodriguez’s sentence is reasonable.
    Rodriguez also argues that the felony and aggravated felony provisions of
    
    8 U.S.C. § 1326
    (b) are unconstitutional in light of Apprendi v. New Jersey,
    
    530 U.S. 466
     (2000), and subsequent Supreme Court decisions. Rodriguez’s
    constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v.
    United States, 
    523 U.S. 224
    , 235 (1998). Although Rodriguez contends that
    Almendarez-Torres was incorrectly decided and that a majority of the Supreme
    Court would overrule Almendarez-Torres in light of Apprendi, we have
    repeatedly rejected such arguments on the basis that Almendarez-Torres
    remains binding. See United States v. Garza-Lopez, 
    410 F.3d 268
    , 276 (5th Cir.
    2005); see also Rangel-Reyes v. United States, 
    126 S. Ct. 2873
     (2006); United
    States v. Pineda-Arrellano, 
    2007 U.S. App. LEXIS 16925
     (5th Cir. July 17, 2007).
    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
    further review.
    AFFIRMED.
    2
    

Document Info

Docket Number: 06-41281

Citation Numbers: 235 F. App'x 986

Judges: Clement, Higginbotham, Per Curiam, Smith

Filed Date: 8/21/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023