United States v. Flores

237 F. App'x 931

Opinion

PER CURIAM: *

Jose Francisco Flores, having pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326, challenges his sentence on two bases.

He first challenges its reasonableness, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (requiring, inter alia, “reasonableness” review of post-Booker sentences, to be guided by the factors stated in 18 U.S.C. § 3553(a)). The district court’s having granted Flores’ objection to the use of a prior conviction in determining his criminal history score, his advisory Guidelines range was 70-87 months. The imposed 72-month sentence was at the low end of this range.

Because the sentence was within the properly-calculated Guideline range (Flores does not maintain otherwise), it is presumed reasonable. E.g., United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). Notwithstanding his claim that the district court failed to properly consider the sentencing factors under 18 U.S.C. § 3553(a), such a sentence is afforded “great deference”, and we infer the sentencing court “has considered all the [§ 3553(a) ] factors for a fair sentence”. United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Flores has failed to rebut his sentence’s presumed reasonableness. See Alonzo, 435 F.3d at 554-55. Indeed, even though Flores contends this presumption of reasonableness violates Booker, he properly concedes this contention is foreclosed; he raises the presumption issue only to preserve its further review.

Flores also challenges, in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated-felony convictions as sentencing factors, rather than elements of the offense. As he concedes, this challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See, e.g., United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Nonetheless, he raises it here to preserve it for further review.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.