Conference Calendar UNITED STATES OF AMERICA v. Mario Alberto Del Bal-Villegas

* 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should not be published and is not precedent except under the limited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.
1 United States v. Booker, 543 U.S. 220 (2005).
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41402
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARIO ALBERTO DEL BAL-VILLEGAS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2666-1
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Mario Alberto Del Bal-Villegas appeals his guilty-plea conviction of, and
sentence for, violating 8 U.S.C. § 1326 by being found in the United States
without permission after deportation. Del Bal-Villegas contends that his
sentence is unreasonable because this court’s post-Booker1 rulings have
effectively reinstated the mandatory sentencing guideline regime condemned in
United States Court of Appeals
Fifth Circuit
F I L E D
October 25, 2007
Charles R. Fulbruge III
Clerk

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No. 06-41402
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Booker. This argument is foreclosed. See Rita v. United States, 127 S. Ct. 2456,
2462 (2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Del Bal-Villegas
challenges the constitutionality of § 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. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). The
Government’s motion for summary affirmance is GRANTED, the Government’s
motion for an extension of time to file a brief is DENIED, and the judgment of
the district court is AFFIRMED.

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