Conference Calendar UNITED STATES OF AMERICA v. Melchor Alcaraz-Barrera

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41467
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MELCHOR ALCARAZ-BARRERA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-401-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Melchor Alcaraz-Barrera (Alcaraz) appeals his guilty-plea conviction and
sentence for being illegally present in the United States following deportation.
He argues that his sentence is unreasonable as a matter of law because this
court’s use of a presumption of reasonableness for sentences imposed within the
properly calculated guidelines range effectively reinstates the mandatory
guidelines regime struck down in United States v. Booker, 543 U.S. 220 (2005).
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. 06-41467
2
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), Alcaraz 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. 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 judgment of the district court is AFFIRMED.

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