236 F. App'x 159

UNITED STATES of America, Plaintiff-Appellee v. Prudenciano BELMONTES-CASTRO, Defendant-Appellant.

No. 07-40085

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office, Southern District Of Texas, Houston, TX, for Defendant-Appellant.

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM: *

Prudenciano Belmontes-Castro (Belmontes) appeals his guilty-plea conviction and 57-month sentence for illegal reentry, in violation of 8 U.S.C. § 1326. He argues *160that 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 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He concedes that his argument is foreclosed by circuit precedent, but he raises it to preserve it for further review. The argument fails as the Supreme Court has since affirmed the use of a presumption of reasonableness. Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-66, 168 L.Ed.2d 203 (2007).

Belmontes’s constitutional challenge to § 1326(b) is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Belmontes contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); see also Rangel-Reyes v. United States, — U.S. -, 126 S.Ct. 2873, 165 L.Ed.2d 910 (2006); United States v. Pinedas-Arrellano, 492 F.3d 624 (5th Cir.2007). Belmontes properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.

United States v. Belmontes-Castro
236 F. App'x 159

Case Details

Name
United States v. Belmontes-Castro
Decision Date
Aug 21, 2007
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236 F. App'x 159

Jurisdiction
United States

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