United States v. Rodriguez-Rodriguez , 258 F. App'x 664 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2007
No. 07-40151
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS ANTONIO RODRIGUEZ-RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-558-1
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Carlos Antonio Rodriguez-Rodriguez (Rodriguez) appeals his guilty-plea
conviction and sentence for being illegally present in the United States following
deportation. He argues that his sentence is unreasonable as a matter of law
because this court’s use of a presumption of reasonableness for sentences
imposed within the properly calculated guidelines range effectively reinstates
the mandatory guidelines regime struck down in United States v. Booker, 543
*
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should not be published and is not precedent except under the limited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. 07-40151
U.S. 220 (2005). This argument is foreclosed. See Rita v. United States, 127 S.
Ct. 2456, 2462 (2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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. 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).
The judgment of the district court is AFFIRMED.
2