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

                                                                            FILED
                                                                          January 2, 2008
                                     No. 06-51290
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

JAVIER IVAN VEGA-MURILLO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:06-CR-753-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Javier Ivan Vega-Murillo (Vega) appeals the sentence imposed following
his guilty-plea conviction for illegal reentry into the United States following
removal. Vega argues that his 41-month sentence was unreasonable as a matter
of law because this court’s use of a presumption of reasonableness for sentences
imposed within the properly calculated guidelines range effectively reinstates
the mandatory guidelines regime struck down in United States v. Booker,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51290

543 U.S. 220 (2005). This argument has been rejected by the Supreme Court.
See Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
      Vega additionally asserts that his sentence was unreasonable on its
merits. He contends that the sentence was unreasonable because it was the
result of the tripling of his offense level due to his prior conviction even though
the nature and circumstances of his offense did not show that he was a
dangerous criminal. He maintains that this led to his offense level overstating
the seriousness of his offense.
      A sentence within a properly calculated guidelines range is entitled to
great deference. See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.
2005). Little explanation is needed when a court imposes a sentence within the
advisory range. Id. at 519. In reviewing such a sentence, we merely ask
whether the district court abused its discretion in imposing it. Rita, 127 S. Ct.
at 2465. Vega has not shown that the district court abused its discretion in
sentencing him within the properly calculated guidelines range. See id. at 2469.
      Vega also maintains the “felony” and “aggravated felony” provisions of 8
U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v.
New Jersey, 530 U.S. 466 (2000).              This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held 8
U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for
cert. filed, (Aug. 28, 2007) (No. 07-6202).
      AFFIRMED.




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