USA v. Martinez-Corpus, No. 06-41291 (5th Cir. 2007)

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The court issued a subsequent related opinion or order on July 29, 2008.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 06-41291 Conference Calendar October 25, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ARTURO MARTINEZ-CORPUS Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-468-1 Before JOLLY, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Arturo Martinez-Corpus appeals from his conviction of illegal reentry following deportation. He argues that the presumption of reasonableness given to sentences within the advisory guideline sentencing range has unconstitutionally reinstated the mandatory guideline sentencing system struck down in United States v. Booker, 543 U.S. 220 (2005). This court s rebuttable presumption that sentences within the guideline sentencing range are * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41291 reasonable does not run afoul of Booker. See Rita v. United States, 127 S. Ct. 2456, 2462 (2007). In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Martinez-Corpus challenges the constitutionality of 8 U.S.C. ยง 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). AFFIRMED. 2

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