IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
October 15, 2007
Summary Calendar Charles R. Fulbruge III
UNITED STATES OF AMERICA
Appeal from the United States District Court for the Southern District of Texas
USDC No. 7:06-CR-288-All
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
Rosendo Rodriguez-Izaguirre appeals his conviction and sentence for
attempted illegal reentry after deportation. Rodriguez-Izaguirre argues that
affording a presumption of reasonableness to his sentence merely because it falls
within the properly calculated sentencing range under the United States
Sentencing Guidelines is inconsistent with United States v. Booker, 543 U.S. 220
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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.
(2005). Rodriguez-Izaguirre concedes that this argument is contrary to current
Fifth Circuit precedent but raises it to preserve it for further review in light of
the writs of certiorari granted by the Supreme Court in Rita v. United States,
127 S. Ct. 551
(2006), and Claiborne v. United States, 127 S. Ct. 551
Rita now has been decided, and the Supreme Court has affirmed that a
"court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines." Rita
v. United States, 127 S. Ct. 2456
, 2462 (2007). Furthermore, the Supreme Court
has vacated the underlying Claiborne decision as moot due to the death of the
petitioner. Claiborne v. United States, 127 S. Ct. 2245
(2007), vacating as moot
439 F.3d 479
(8th Cir. 2006). Therefore, Rodriguez-Izaguirre's argument
Rodriguez-Izaguirre also argues that his sentence is unreasonable because
the district court failed to properly assess the factors set forth in 18 U.S.C.
§ 3553(a). The district court's sentence was imposed with sufficient
consideration of the § 3553(a) factors and is not unreasonable. See United States
v. Nikonova, 480 F.3d 371
, 376 (5th Cir. 2007), petition for cert. filed, (U.S. May
21, 2007) (No. 06-11834); United States v. Alonzo, 435 F.3d 551
, 554 (5th Cir.
In light of Apprendi v. New Jersey, 530 U.S. 466
Izaguirre also challenges the constitutionality of § 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).
Accordingly, the judgment of the district court is AFFIRMED.
[End Page 2]
DENNIS, Circuit Judge, concurring in affirming the conviction and sentence
I concur in affirming the conviction and sentence only. See United States
v. Pineda-Arrellano, 492 F.3d 624
, 625 (5th Cir. 2007) (Dennis, J., concurring in
affirming the conviction and sentence only).
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