Conference Calendar UNITED STATES OF AMERICA v. Juan Manuel Macias-Cruz, also known as Juan Manuel Macias

* 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should not be published and is not precedent except under the limited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
August 21, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20829
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN MANUEL MACIAS-CRUZ, also known as Juan Manuel Macias
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-34-ALL
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Manuel Macias-Cruz was convicted of illegal reentry into the United
States after having been deported and was sentenced to serve 45 months in
prison. Macias-Cruz contends that our rulings giving a presumption of
reasonableness to guidelines sentences effectively reinstate mandatory
guidelines sentencing and render his sentence unreasonable as a matter of law.
He concedes that his argument is foreclosed by circuit precedent, but he raises

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No. 06-20829
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it to preserve it for further review. The argument fails in light of the decision in
Rita v. United States, 127 S. Ct. 2456, 2462-66 (2007).
Macias-Cruz also 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. Macias-Cruz’s
constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although he contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would overrule it
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. 2005); see also
Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United States v.
Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007). Macias-
Cruz 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.
The judgment of the district court is AFFIRMED.

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