United States v. Humana-Heron

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 13, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11412
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR HUMANA-HERON, also known as Julio Umana-Geron, also
known as Jose Orellano-Calistro,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-104
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Following a jury trial, Julio Cesar Humana-Heron was
convicted of one charge of illegal reentry into the United States
after conviction of an aggravated felony and sentenced to serve
63 months in prison. Humana-Heron argues that the district court
erred by admitting a warrant of deportation at trial because this
document amounted to hearsay. As he concedes, this argument is
foreclosed. See United States v. Valdez-Maltos, 443 F.3d 910,
911 (5th Cir.), cert. denied, 127 S. Ct. 265 (2006).

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No. 05-11412
-2-
Humana-Heron’s constitutional challenge to 8 U.S.C. § 1326
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Humana-Heron 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 (2000), we have repeatedly
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, 126 S. Ct. 298 (2005). Humana-
Heron 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.
Humana-Heron’s challenge to his sentence, which was within
the applicable guidelines range, is unavailing. His challenge to
this court’s prior caselaw concerning the presumption of
reasonableness attached to sentences that are within the
pertinent guidelines range is unavailing. See United States v.
Ruff, 984 F.2d 635, 640 (5th Cir. 1993). His disagreement with
the Sentencing Commission’s assessment of the seriousness of his
offense does not establish that his sentence is unreasonable.
See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED.

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