United States Court of Appeals, Fifth CircuitJun 14, 2007
231 Fed. Appx. 338 (5th Cir. 2007)

No. 06-50387, Summary Calendar.

June 14, 2007.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Donna F. Coltharp, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendants-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:05-CR-1996-ALL.

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

Jose Conde-Sanchez (Conde) appeals the 41-month sentence he received for attempted illegal reentry under 8 U.S.C. § 1326. First he asserts that his sentence at the bottom of the guidelines range was unreasonable because the district court failed to properly weigh several of the factors under 18 U.S.C. § 3553(a). He claims that the sentence does not reflect the seriousness of his offense, that it fails to take into consideration the sentencing disparities created because the Western District of Texas does not have an early disposition program, and that his history and characteristics support a more lenient sentence.

When the district court imposes a sentence within the guidelines range, we infer that the court has considered all the factors for a fair sentence and "give great deference to that 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). Conde has failed to establish the rare circumstances where a district court's decision to impose a guidelines sentence is not entitled deference. See id.

Next Conde challenges the constitutionality of § 1326(b)'s treatment of prior aggravated felony convictions as sentencing factors rather than elements of a separate offense. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Conde asserts 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 repeatedly have rejected such arguments on the basis that Almendarez-Torres remains binding. See 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).

The judgment of the district court is AFFIRMED.