United States v. Rodriguez-Rodriguez

PER CURIAM:

* Jose Bernardo Rodriguez-Rodriguez was convicted of one count of having *17 been found in the United States following deportation and sentenced to serve 57 months in prison. Rodriguez-Rodriguez argues that his bottom of the guideline range sentence (imposed July 2006) is unreasonable because he requested a sentence below the guidelines based on the 18 U.S.C. § 3553 factors and that the district court imposed the sentence without considering the mitigating factor or the nature and circumstances of the offense. The record shows that Rodriguez-Rodriguez’s factual assertion that the district court did not consider the mitigating circumstance presented at sentencing is factually incorrect. Rodriguez-Rodriguez has not shown that the sentence imposed by the district court is unreasonable.

See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.2005).

Rodriguez-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. Rodriguez-Rodriguez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). Although he contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres is 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 Almendarez-Torres remains binding.

See United States v. Garzar-Lopez, 410 F.3d 268, 276 (5th Cir.2005). Rodriguez-Rodriguez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for future review.

The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5 the Court has determined that this opinion should not be *17 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.