USA v. Torres-Rivas, No. 06-40423 (5th Cir. 2007)
Annotate this Case
Download PDF
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 2, 2007 Charles R. Fulbruge III Clerk No. 06-40423 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PORFIRIO TORRES-RIVAS, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-1819-ALL -------------------Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Porfirio TorresRivas (Torres) preserves for further review his contention that his sentence is unreasonable because this court s post-Booker** rulings have effectively reinstated the mandatory Sentencing Guideline regime condemned in Booker. Torres concedes that his argument is foreclosed by United States v. Mares, 402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005), and its progeny, which have outlined this court s methodology for reviewing * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** United States v. Booker, 543 U.S. 220 (2005). No. 06-40423 -2sentences for reasonableness. Torres also preserves for further review his contention that his sentence is unreasonable because the illegal reentry guideline is unduly severe. Torres concedes that this argument is foreclosed by United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006), which held that Booker does not give sentencing courts the discretion to impose a nonGuideline sentence based on the courts disagreement with Congressional and Sentencing Commission policy. Finally, Torres raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. ยง 1326(b)(2) is a penalty provision and not a separate criminal offense. The Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
