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

                                                                    FILED
                                                                  February 20, 2008
                                No. 07-10655
                             Conference Calendar              Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

JOSE MANUEL PAREDES-MENDEZ, also known as Andreas Garcia

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:06-CR-391


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Manuel Paredes-Mendez (Paredes) appeals the 64-month sentence he
received following his guilty plea conviction for illegal reentry, in violation of
8 U.S.C. § 1326. He contends that the sentence imposed is unreasonable because
the Guidelines do not take into account the remoteness of his prior
drug-trafficking conviction or the small quantity of drugs involved. Paredes
further argues that the sentence imposed does not comport with the goals of 18
U.S.C. § 3553(a), especially § 3553(a)(2).

      *
      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should not be published and is not precedent except under the limited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. 07-10655

      Because the sentence Paredes received fell within the correctly calculated
guidelines range, it is presumptively reasonable. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006). The district court’s proper consideration of the
§ 3553(a) factors, including § 3553(a)(2), is inferred. See United States v. Mares,
402 F.3d 511, 518-19 (5th Cir. 2005). Paredes has not shown that his sentence
is unreasonable. See Gall v. United States, 128 S. Ct. 586, 602 (2007). The true
nature of his argument is that the district court erred in failing to depart
downwardly from the guidelines range. However, this court lacks jurisdiction
to consider the district court’s refusal to downwardly depart given that there is
no indication that the district court erroneously believed that it lacked the
authority to do so. See United States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th
Cir. 2006).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Paredes next
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 issue is foreclosed. United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008). The district court’s judgment is AFFIRMED.




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