USA v. Rodriguez-Rodriguez, No. 07-40151 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-40151 Conference Calendar December 12, 2007 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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