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

                                                                  FILED
                                                               September 11, 2008
                               No. 06-51173
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JUAN PABLO MONTES-GARAY, also known as Juan Madera

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:06-CR-682-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Juan Pablo Montes-Garay appeals the sentence imposed for his illegal
reentry into the United States after having been removed following a felony
conviction in violation of 8 U.S.C. § 1326. Montes-Garay’s guidelines range of
imprisonment was seventy to eighty-seven months. The district court sentenced
him to seventy months in prison.
      Montes-Garay argues on appeal that the district court erred by failing to
properly weigh and balance the sentencing factors set forth in 18 U.S.C.

      *
      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should not be published and is not precedent except under the limited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. 06-51173

§ 3553(a). He states, for example, that he reentered the United States only to
find work and a seventy-month sentence was too harsh of a penalty for what
amounted to no more than an international trespass.
      Our review is bifurcated. See Gall v. United States, 128 S. Ct. 586, 597
(2007). First, we must determine whether the district court committed any
significant procedural error. Id. Second, if the district court did not commit a
significant procedural error, we review the sentence for substantive
reasonableness. Id. We review sentencing decisions for abuse of discretion. Id.
We review the district court’s application of the Sentencing Guidelines de novo
and the court’s factual findings for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The record shows that the district court heard argument and received
information regarding the circumstances of Montes-Garay’s offense, including
his motive for reentering the United States. The district court was provided
with information that addressed several § 3553(a) factors, including the nature
and circumstances of Montes-Garay’s offense, his history and characteristics,
and the need for the sentence imposed to reflect the seriousness of the offense,
to provide just punishment, to give adequate deterrence from criminal conduct,
and to protect the public from future crimes by the defendant. Prior to imposing
the sentence, the district court gave Montes-Garay the opportunity to speak on
his behalf, and the court specifically addressed both his mitigation arguments
and his prior drug offense. See Rita v. United States, 127 S. Ct. 2456, 2469
(2007).
      Montes-Garay has not demonstrated that the district court procedurally
or substantively erred and thus abused its discretion in imposing his sentence.
See Gall, 128 S. Ct. at 596-97. He has not rebutted the presumption that his
sentence, which falls within and at the bottom of a properly calculated
sentencing guidelines range, is reasonable. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). In light of the deferential standard set forth in Gall,

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Montes-Garay has not established that the district court erred in imposing his
sentence. 128 S. Ct. at 597.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Montes-Garay
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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