USA v. Hernandez-Azua

Filing 920070531

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 31, 2007 Charles R. Fulbruge III Clerk No. 06-40992 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GILBERTO HERNANDEZ-AZUA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas (5:05-CR-1374) -------------------Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Defendant-Appellant Gilberto Hernandez-Azua appeals from his guilty plea conviction and 46-month sentence for being an alien found unlawfully in the United States after deportation and

following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Hernandez-Azua argues that his sentence "is

contrary to [United States v. Booker, 543 U.S. 220 (2005)] and unreasonable as a matter of law." He contends that this court's

post-Booker decisions have effectively reinstated the mandatory guideline scheme condemned by Booker and further argues that, postPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Booker, a district court in imposing sentence should be allowed to disagree with policy decisions of the Sentencing Commission. Post-Booker, appellate courts are to review sentences for reasonableness. Booker, 543 U.S. at 261-63; United States v. "If the sentencing judge

Mares, 402 F.3d 511, 518 (5th Cir. 2005).

exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines." Mares, 402 F.3d at 519.

"Given the deference due the sentencing judge's discretion under [Booker], it will be rare for a reviewing court to say such a sentence is `unreasonable.'" Id. Hernandez-Azua identifies no

error in the guidelines calculations, and he was sentenced at the low end of the applicable guidelines range. Hernandez-Azua's sentence was reasonable. Hernandez-Azua's constitutional We conclude that

See id. at 519-20. and non-constitutional

challenges to § 1326(b) are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Hernandez-Azua

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 AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Hernandez-Azua properly concedes that his arguments are foreclosed 2

in light of Almendarez-Torres and circuit precedent, but he raises them here to preserve them for further review. The judgment of the district court is AFFIRMED.

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