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

                                                                 FILED
                                                                October 8, 2007
                               No. 06-41051
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CRECENCIO PEREZ-JIMENEZ, also known as Cresencio Perez-Jimenez, Jr

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                        USDC No. 5:05-CR-1366-ALL


Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Crecencio Perez Jimenez is appealing his conviction and sentence imposed
following his guilty plea to being found unlawfully present in the United States
following deportation. Perez was sentenced to a term of imprisonment of 46
months.
      Perez argues that this court’s application of the presumption of
reasonableness to a guideline sentence reinstates the mandatory guidelines



      *
      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should not be published and is not precedent except under the limited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. 06-41051

regime set aside in United States v. Booker, 543 U.S. 220 (2005). This argument
is foreclosed by the Supreme Court’s ruling in Rita v. United States, 127 S. Ct.
2456, 2463-68 (2007).
      Perez further argues that his sentence is unreasonable because the district
court did not specifically address his arguments for a variance below the
sentencing guidelines range and, thus, failed to give proper consideration to the
relevant 18 U.S.C. § 3553(a) factors. Perez did not make this argument in the
district court. Thus, review is for plain error. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005).
      Under the discretionary sentencing system established by Booker, if the
district court imposes a sentence within a properly calculated guidelines range,
this court will give the sentence “great deference” and “will infer that the judge
has considered all the factors for a fair sentence set forth in the Guidelines.” Id.
at 519, 520. In such cases, “it will be rare for a reviewing court to say such a
sentence is ‘unreasonable’” and “little explanation is required.” Id. at 519.
Rita held that the district court’s reasons therein were sufficient where it was
clear that the district court listened to the arguments and understood the
defendant’s circumstances. 127 S. Ct. at 2469. The record reflects that the
district court was familiar with the presentence report (PSR) and that the
district court gave Perez and his counsel an ample opportunity to present their
arguments in favor of the variance. The district court gave strong consideration
to Perez’s medical condition and recommended that it be taken into account in
his prison assignment.
      Insofar as the district court did not specifically mention Perez’s argument
concerning his family ties in the United States, such factor was not entitled to
significant weight, see U.S.S.G. § 5H1.6 (p.s.). Regarding the district court’s
failure to address his argument concerning his criminal history, Perez has not
shown that the PSR overstated the seriousness of his prior criminal history
merely because it listed prior convictions that were ten and twelve years old.

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Thus, Perez has not shown that the district court’s failure to expressly address
all of his arguments for a variance affected his substantial rights. Mares, 402
F.3d at 520.
      Insofar as Perez asserts that his sentence is unreasonable, he has failed
to demonstrate that the district court erred in exercising its broad sentencing
discretion by imposing a sentence that failed to account for a factor that should
have received significant weight, by giving significant weight to an irrelevant or
improper factor, or by representing a clear error of judgment in balancing the
sentencing factors. See United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.
2007), petition for cert. filed, (May 21, 2007) (No. 06-11834). Thus, Perez has not
rebutted the presumption that the sentence imposed in his case was reasonable.
See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Perez challenges
the constitutionality of 8 U.S.C. § 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 the issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007).
      Perez’s conviction and sentence are AFFIRMED.




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