United States v. Ramirez-Juarez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 2, 2007
Charles R. Fulbruge III
Clerk
No. 06-40754
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO RAMIREZ-JUAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2570-ALL
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Before DAVIS, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Juan Antonio Ramirez-Juarez appeals his conviction and 41-
month sentence for attempted illegal reentry. Ramirez-Juarez
argues that the sentence imposed by the district court should not
be afforded a presumption of reasonableness merely because it is
within the properly calculated guidelines range. Ramirez-
Juarez’s argument is foreclosed by Rita v. United States, ___ S.
Ct. ___, 2006 WL 1772146 at *6-*11 (June 25, 2006).
Ramirez-Juarez further contends that even if a presumption
of reasonableness applies to his sentence, the presumption is
*
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this opinion should not be published and is not precedent except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.
No. 06-40754
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overcome and the sentence is unreasonable when, as in his case,
the district court “is presented with nonfrivolous grounds for a
below-Guidelines sentence that the court simply passed over in
silence.”
The district court heard the arguments that Ramirez-Juarez
had only one prior offense several years earlier and that he had
reentered the United States for family reasons. The judge
commented that, although Ramirez-Juarez had only one prior
offense, it was a serious offense. Based on that serious
history, the court stated that a sentence within the guideline
range “would be reasonable.” Under Rita, the district court’s
statement of reasons was sufficient. 2006 WL 1772146 at * 13.
Ramirez-Juarez also challenges the constitutionality of
8 U.S.C. § 1326(b). His constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ramirez-Juarez contends 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 have repeatedly 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). Ramirez-Juarez properly
concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
No. 06-40754
-3-
AFFIRMED.