United States v. Cruz-Jaimes

* 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opinion should not be published and is not precedent except under the limited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
June 7, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40985
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EZEQUIEL CRUZ-JAIMES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 5:06-CR-396
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Ezequiel Cruz-Jaimes appeals his conviction of and sentence
for illegal reentry after having been deported following a convic-
tion for an aggravated felony, in violation of 8 U.S.C. § 1326(a)
and (b)(2). He does not challenge the calculation of his sentenc-

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No. 06-40985
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ing guideline range but argues that the seventy-seven-month sen-
tence should not be afforded a presumption of reasonableness merely
because it is within the properly-calculated range. He raises the
argument to preserve it for further review in light of the granting
of writs of certiorari in Rita v. United States, 127 S. Ct. 551
(2006), and Claiborne v. United States, 127 S. Ct. 551 (U.S. 2006).
Because an intervening Supreme Court case explicitly or implicitly
overruling prior caselaw is required to alter this court’s prece-
dent, the grant of certiorari in Rita has no impact on this court’s
precedent. See United States v. Short, 181 F.3d 620, 624 (5th Cir.
1999).
Relying on United States v. Cunningham, 429 F.3d 673, 679 (7th
Cir. 2005), Cruz-Jaimes contends that even if a presumption of rea-
sonableness applies to his sentence, the presumption is overcome
and the sentence is unreasonable where, as here, the district court
“is presented with nonfrivolous grounds for a below-Guidelines sen-
tence that the court simply passed over in silence.” This argument
is unpersuasive and unsupported by the record. Following United
States v. Booker, 543 U.S. 200, 261 (2005), we review sentences for
“unreasonableness.” United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005). When the district court imposes a post-Booker sentence
within a properly calculated guidelines range, we “will give great
deference to that sentence” and “will infer that the judge has con-
sidered all the factors for a fair sentence set forth in the Guide-
lines.” Id. at 519-20 (internal quotation marks and citation omit-

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No. 06-40985
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ted). Accordingly, little explanation is needed when a court im-
poses a sentence within the advisory range. United States v. Rein-
hart, 442 F.3d 857, 861 (5th Cir.), cert. denied, 127 S. Ct. 131
(2006).
Our review of the record reveals that the district court con-
sidered Cruz-Jaimes’s mitigation arguments, even though the sen-
tencing guidelines discourage the consideration of family responsi-
bilities in deciding whether a departure is warranted. See
U.S.S.G. § 5H1.6 and the factors in 18 U.S.C. § 3553(a). Cruz-
Jaimes has therefore failed to demonstrate that his sentence is
unreasonable.
Cruz-Jaimes challenges the constitutionality of 8 U.S.C.
§ 1326 (b)(1) and (2). His argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), in which the
Court held that treatment of prior convictions as sentencing fac-
tors in § 1326(b)(1) and (2) is constitutional. Although Cruz-
Jaimes suggests that a majority of the Supreme Court would now con-
sider Almendarez-Torres to be incorrectly decided in light of Ap-
prendi v. New Jersey, 530 U.S. 466 (2000), “[t]his court has re-
peatedly rejected arguments like the one made by [Vasquez] and has
held that Almendarez-Torres remains binding despite Apprendi.”
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005).
See Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006). Cruz-
Jaimes acknowledges that his argument is foreclosed, but he raises
it to preserve it for further review.

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No. 06-40985
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AFFIRMED.

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