United States v. Gutierrez-Arriaga

* 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this opinion should not be published and is not precedent except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
June 25, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 06-41535
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GUTIERREZ-ARRIAGA, also known as Juan Ramirez-Arriaga,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(1:06-CR-370)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Juan Gutierrez-Arriaga was convicted of one count of illegal
reentry into the United States following an aggravated-felony
conviction, and sentenced to 37 months’ imprisonment.
Gutierrez-Arriaga contends his sentence is unreasonable
because the district court failed to accord proper weight to the
sentencing factors in 18 U.S.C. § 3553. This assertion lacks
merit. When a sentence is within a properly calculated guidelines
range, our court infers that the requisite sentencing factors were

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considered and gives great deference to that sentence. E.g.,
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005). The record shows: the district court gave
due weight to the § 3553 factors; and the sentence is not
unreasonable.
Gutierrez-Arriaga 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 constitutional
challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Gutierrez-Arriaga properly concedes this; he
raises the issue only to preserve it for further review.
AFFIRMED

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