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

                                                                            FILED
                                                                           April 29, 2008
                                     No. 07-40597
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

JESUS CARBAJAL-ALVARADO, also known as Jesus N Carvajal, also known
as Jesus Carbarjar, also known as Jesus Carbajal,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 3:06-CR-18-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Jesus Carbajal-Alvarado (Carbajal) appeals his conviction and sentence
for being found unlawfully in the United States following removal. Carbajal
argues that the sentence imposed was unreasonable because the district court
impermissibly applied a presumption of reasonableness to sentences within the
guidelines range. In reviewing a sentence for reasonableness, we first determine
whether the district court’s sentencing decision was procedurally sound and then


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40597

consider the substantive reasonableness of the sentence. Gall v. United States,
128 S. Ct. 586, 597 (2007).
      The record shows that the district court applied a presumption of
reasonableness for sentences within the guidelines range and required the
existence of extraordinary circumstances to impose a sentence outside of the
guidelines range. The Supreme Court has since held that while an appellate
court may apply a presumption of reasonableness to sentences within the
guidelines range, a district court may not. Rita v. United States, 127 S. Ct. 2456,
2462-65 (2007); Gall, 128 S. Ct. at 596-97. As the sentence imposed was not
procedurally sound, we vacate Carbajal’s sentence and remand for resentencing.
See Gall, 128 S. Ct. at 596-97; see also United States v. Newsom, 508 F.3d 731,
733 (5th Cir. 2007) (implying that a procedurally unsound sentence should be
vacated by noting that issues of substantive reasonableness are not reached if
sentence is procedurally unsound).
      Carbajal argues that his sentence was unreasonable as a matter of law
because this court’s precedent following United States v. Booker, 543 U.S. 220
(2005), has effectively reinstated the mandatory guidelines regime found
unconstitutional in Booker. He acknowledged that this argument was foreclosed
at the time he raised it, but raised the issue to preserve it in light of the then
pending Supreme Court cases of Gall and Kimbrough v. United States, 128 S. Ct.
558, 575 (2007). Gall and Kimbrough have now been decided, and nothing in
either case demonstrates that this court’s post-Booker precedent effectively
reinstated the mandatory guidelines.        See Gall, 128 S. Ct. at 594-602;
Kimbrough, 128 S. Ct. at 569-76.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Carbajal
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 argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.

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                                 No. 07-40597

Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.




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