United States v. Hernandez-Azua

* 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this opinion should not be published and is not precedent except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
May 31, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40992
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO HERNANDEZ-AZUA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(5:05-CR-1374)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Gilberto Hernandez-Azua appeals from his
guilty plea conviction and 46-month sentence for being an alien
found unlawfully in the United States after deportation and
following a conviction for an aggravated felony, in violation of
8 U.S.C. § 1326. Hernandez-Azua argues that his sentence “is
contrary to [United States v. Booker, 543 U.S. 220 (2005)] and
unreasonable as a matter of law.” He contends that this court’s
post-Booker decisions have effectively reinstated the mandatory
guideline scheme condemned by Booker and further argues that, post-

-- 1 of 3 --

2
Booker, a district court in imposing sentence should be allowed to
disagree with policy decisions of the Sentencing Commission.
Post-Booker, appellate courts are to review sentences for
reasonableness. Booker, 543 U.S. at 261-63; United States v.
Mares, 402 F.3d 511, 518 (5th Cir. 2005). “If the sentencing judge
exercises her discretion to impose a sentence within a properly
calculated Guideline range, in our reasonableness review we will
infer that the judge has considered all the factors for a fair
sentence set forth in the Guidelines.” Mares, 402 F.3d at 519.
“Given the deference due the sentencing judge’s discretion under
[Booker], it will be rare for a reviewing court to say such a
sentence is ‘unreasonable.’” Id. Hernandez-Azua identifies no
error in the guidelines calculations, and he was sentenced at the
low end of the applicable guidelines range. We conclude that
Hernandez-Azua’s sentence was reasonable. See id. at 519-20.
Hernandez-Azua’s constitutional and non-constitutional
challenges to § 1326(b) are foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Hernandez-Azua
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).
Hernandez-Azua properly concedes that his arguments are foreclosed

-- 2 of 3 --

3
in light of Almendarez-Torres and circuit precedent, but he raises
them here to preserve them for further review.
The judgment of the district court is
AFFIRMED.

-- 3 of 3 --