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

                                                                    FILED
                                                                   July 23, 2008
                                 No. 06-60811
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

ROBERT G VIRGIL

                                             Defendant-Appellant


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                            USDC No. 3:04-CR-39


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Robert G. Virgil appeals the 96-month sentence imposed by the district
court following his jury trial conviction for possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g). Prior to sentencing, Virgil filed a motion
for funds to hire an expert pursuant to 18 U.S.C. § 3006A(e)(1), which the
district court denied.
      At sentencing, Virgil requested that the district court consider the
arguments raised in his motion for funds as mitigating factors for sentencing

      *
      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should not be published and is not precedent except under the limited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. 06-60811

purposes. On appeal, Virgil contends that the district court erred in denying his
§ 3006A(e)(1) motion because further testing could have been used for mitigation
purposes at sentencing and in support of his request for a downward departure
pursuant to U.S.S.G. § 5K2.13. based on diminished capacity.
      This court reviews a district court’s denial of a § 3006A(e)(1) motion for
abuse of discretion. See United States v. Hardin, 437 F.3d 463, 468 (5th Cir.
2006). Virgil has failed to demonstrate that further testing was “necessary for
adequate representation.” See United States v. Williams, 998 F.2d 258, 263-64
(5th Cir. 1993). He has further failed to demonstrate that he was prejudiced by
the district court’s denial of his § 3006A(e)(1) motion, see, e.g., United States v.
Bertling, 370 F.3d 818, 820 (8th Cir. 2004), and has therefore failed to show that
the district court abused its discretion.
      Virgil also contends that the district court erred in refusing to depart
downward pursuant to § 5K2.13. However, this court is without jurisdiction to
review a district court’s refusal to grant a downward departure when, as in this
case, the district court’s decision is based upon a determination that the
departure was not warranted on the facts of the case before it. See United States
v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006).
      Virgil also asserts that the district court erroneously applied a
presumption of reasonableness to his within-guidelines sentence. The record
demonstrates that the district court did not apply a presumption of
reasonableness to the within-guidelines sentence or require Virgil to overcome
a presumption that the guidelines range was reasonable. Thus, Virgil has failed
to demonstrate any error.
      In addition, Virgil contends that the district court’s failure to grant his
motion for downward departure and its denial of his motion for funds resulted
in an “unreasonable” sentence. Because these contentions are without merit,
Virgil has not overcome the presumption that his within-guidelines sentence was
reasonable, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and

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he has not shown that the sentence imposed by the district court constituted
error, plain or otherwise, see Gall v. United States, __ U.S. __, 128 S. Ct. 586,
594-97 (2007); see United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.), cert.
denied, 128 S. Ct. 163 (2007).
      Finally, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Virgil
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 argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.




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