Summary Calendar UNITED STATES OF AMERICA v. Julio Cesar Nicoli-Fuentes

* 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should not be published and is not precedent except under the limited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. 07-10805
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JULIO CESAR NICOLI-FUENTES
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-21-ALL
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Julio Cesar Nicoli-Fuentes (Nicoli) pleaded guilty to illegal reentry after
deportation and was sentenced to 46 months of imprisonment and three years
of supervised release.
Nicoli argues that his sentence, which was within the recommended
guidelines range, was procedurally unreasonable because the district court did
not provide sufficient reasons for imposing his within-guidelines sentence and
United States Court of Appeals
Fifth Circuit
F I L E D
July 15, 2008
Charles R. Fulbruge III
Clerk

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was substantively unreasonable because the district court did not give proper
weight to his cultural assimilation and other mitigating factors.
An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
If the sentencing decision is procedurally sound, the appellate court then
considers “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id.
Because Nicoli did not challenge either the district court’s reasons for the
sentence imposed or the substantive reasonableness of his sentence in the
district court, these issues should be reviewed for plain error. See Unites States
v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008); United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007), cert denied, ___ U.S. ___, 2008 WL 227315
(June 23, 2008) (No. 07-8978). Nicoli contends for the purpose of preserving the
issue for further review that Peltier was wrongly decided and that he should not
have been required to object specifically to the reasonableness of his sentence in
order to preserve the issue for review. However, this court is bound by its
decision in Peltier until it is changed by this court acting en banc or until the
Supreme Court clearly holds or teaches to the contrary. See United States v.
Ruff, 984 F.2d 635, 640 (5th Cir. 1993).
Nicoli has not shown that the district court plainly erred by failing to
sufficiently state its reasons for sentencing. See Lopez-Velasquez, 526 F.3d at
806. The district court’s adoption of the presentence report and its statement
that it had considered Nicoli’s arguments for a downward departure and the
§ 3553(a) factors in determining his within-guidelines sentence constituted
sufficient reasons for imposing his sentence. See Rita v. United States, 127 S. Ct.

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2456, 2468-69 (2007); United States v.Gomez-Herrera, 523 F.3d 554, 565 (5th Cir.
2008).
Nicoli also has not shown that the district court plainly erred in imposing
a sentence that was substantively unreasonable. Nicoli’s within-guidelines
sentence is entitled to a rebuttable presumption of reasonableness. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita, 127 S. Ct. at
2462. Although Nicoli contends that the district court did not take into account
certain mitigating factors, Nicoli made these arguments at sentencing, and the
district court stated that it had taken into consideration these arguments, as
well as the § 3553(a) factors, in sentencing him. Nicoli also argues that his
sentence did not meet the § 3553(a)(2)(A) requirement that it reflect the
seriousness of the offense, the need to promote respect for the law, and the need
to provide just punishment because the 16-level increase in his offense level
based on his prior convictions of armed robbery caused his sentence for an
“international trespass violation” to be more severe than the sentences for other
more serious crimes. However, a district court’s refusal to deviate from the
guidelines range based on the severity of a guidelines provision has not been
held to be unreasonable. See Kimbrough v. United States, 128 S. Ct. 558, 570-76
(2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Nicoli also
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 argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
AFFIRMED.

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