United States v. Conde-Sanchez

* 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this opinion should not be published and is not precedent except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 14, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50387
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CONDE-SANCHEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1996-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Conde-Sanchez (Conde) appeals the 41-month sentence he
received for attempted illegal reentry under 8 U.S.C. § 1326.
First he asserts that his sentence at the bottom of the
guidelines range was unreasonable because the district court
failed to properly weigh several of the factors under 18 U.S.C.
§ 3553(a). He claims that the sentence does not reflect the
seriousness of his offense, that it fails to take into
consideration the sentencing disparities created because the
Western District of Texas does not have an early disposition

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No. 06-50387
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program, and that his history and characteristics support a more
lenient sentence.
When the district court imposes a sentence within the
guidelines range, we infer that the court has considered all the
factors for a fair sentence and “give great deference to that
sentence.” United States v. Mares, 402 F.3d 511, 519-20 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). Conde has failed to
establish the rare circumstances where a district court’s
decision to impose a guidelines sentence is not entitled
deference. See id.
Next Conde challenges the constitutionality of § 1326(b)’s
treatment of prior aggravated felony convictions as sentencing
factors rather than elements of a separate offense. This
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Conde asserts 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 repeatedly have
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).
The judgment of the district court is AFFIRMED.

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