          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                                                              September 5, 2007
                                No. 07-50085
                              Summary Calendar
                                                            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE GUADALUPE PEREZ-CHAVEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:06-CR-1445-ALL


Before REAVLEY, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Jose Guadalupe Perez-Chavez pleaded guilty to illegal reentry pursuant
to 8 U.S.C. § 1326(a), (b). The district court sentenced him to 87 months in
prison, in the middle of the advisory range of 77 to 96 months under the
Sentencing Guidelines. Perez-Chavez now appeals. Finding no error, we affirm.
      Perez-Chavez first argues that the district court’s decision to impose an 87-
month sentence was based on the court’s misapprehension of his criminal history
as involving an escalating level of seriousness and significant “breaks” with

      *
      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should not be published and is not precedent except under the limited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. 07-50085

respect to prior sentences. Thus, he contends, the district court’s sentence was
unreasonable. Perez-Chavez did not raise these specific arguments in the
district court, which could result in review for plain error, see United States v.
Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007), a point not addressed by
the parties. We need not decide whether plain error applies, however, because
even under a reasonableness standard, Perez-Chavez’s arguments fail.
      There is no dispute that the guidelines range was properly calculated.
Thus, the sentence is entitled to a rebuttable presumption of reasonableness.
See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006); see also Rita
v. United States, 127 S. Ct. 2456, 2463-68 (2007). In considering whether the
presumption of reasonableness has been rebutted, this court begins with the test
set out in United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006), for
analyzing the reasonableness of non-guidelines sentences. See United States v.
Nikonova, 480 F.3d 371, 376 (5th Cir. 2007), petition for cert. filed (May 21, 2007)
(No. 06-11834). Under the Smith test, a sentence outside the guidelines range
is unreasonable in light of the § 3553(a) factors if it “(1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors.” Smith, 440 F.3d at 708. In order to rebut
the presumption of reasonableness attached to a sentence within the guidelines
range, the defendant must show that “the sentence falls so far afoul of one of the
standards in Smith as to constitute a clear error in the court's exercise of its
broad sentencing discretion.” Nikonova, 480 F.3d at 376.
      Our review of the record, including Perez-Chavez’s criminal history,
convinces us that the sentence imposed by the district court did not fail to
“account for a factor that should have received significant weight,” give
“significant weight to an irrelevant or improper factor,” or represent “a clear
error of judgment in balancing the sentencing factors.” Nikonova, 480 F.3d at
376. The district court’s disposition is reasonable. See id.

                                         2
                                  No. 07-50085

      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Perez-Chavez 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 court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007).
      AFFIRMED.




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