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

                                                FILED
                                                                March 11, 2009
                               No. 08-50573
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

LIBRADO LIENDO-SAUCEDO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:06-CR-1624-ALL


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Librado Liendo-Saucedo (Liendo) pleaded guilty to illegally reentering the
United States following a prior deportation, and he appealed the 87-month
sentence that was originally imposed. We remanded the case for resentencing.
On remand, the district court sentenced Liendo to 48 months of imprisonment
and a three-year term of non-reporting supervised release. Liendo now appeals
that newly imposed sentence.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50573

      Liendo argues that the district court erred by imposing an eight-level
sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Specifically, he
argues that, pursuant to the Supreme Court’s decision in Lopez v. Gonzales, 549
U.S. 47 (2006), his second conviction for simple possession of marijuana under
Colorado law does not constitute an “aggravated felony” warranting the eight-
level increase. As Liendo concedes, his arguments are foreclosed by United
States v. Cepeda-Rios, 530 F.3d 333, 335-36 & n. 11 (5th Cir. 2008).
      Liendo argues that the 48-month sentence imposed by the district court
is unreasonable. The district court expressly considered the sentencing factors
set forth at 18 U.S.C. § 3553(a) in selecting the sentence. The district court
found this sentence appropriate in light of Liendo’s personal and criminal
histories, his likelihood of recidivism, the need to promote a respect for the law,
and the need to provide a deterrent to future criminal behavior. We note that
the district court expressed concern with these same factors at Liendo’s original
sentencing hearing. Neither the district court’s variance from the advisory
guidelines range nor the extent of the variance constitutes an abuse of
discretion. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
      Liendo maintains that, by analyzing and applying pertinent caselaw and
statutes in responding to Liendo’s objections to the presentence report, the
probation officer violated Texas law by engaging in the unauthorized practice of
law. He asserts that the probation officer’s actions violated his right to due
process and undermined the fairness of the sentencing proceeding.             The
probation officer’s analysis was made during the course of performing the duties
assigned to her by 18 U.S.C. § 3603, by F ED. R. C RIM. P. 32, and by the district
court. Liendo has not alleged or shown that he was prevented from presenting
arguments or testimony in support of his objections to the presentence report.
Nor has he shown that the district court deviated from the requirements of Rule
32.   Liendo has not shown a due process violation or that his sentencing
proceeding was unfair.

                                        2
                                  No. 08-50573

      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Liendo 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, as Liendo concedes,
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).
      The judgment of the district court is AFFIRMED.




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