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

                                                             FILED
                                                            April 10, 2008
                             No. 07-10378
                           Summary Calendar             Charles R. Fulbruge III
                                                                Clerk

UNITED STATES OF AMERICA

                                       Plaintiff-Appellee

v.

JOSE CANDELARIO OLIVARES-BENAVIDES, also known as Paul Mendoza,
also known as Martin Gonsalez, also known as Pablo Mendoza, also known as
Jose Candelario Benavides-Olivares

                                       Defendant-Appellant



                            Consolidated with
                              No. 07-10524
                           Summary Calendar


UNITED STATES OF AMERICA

                                       Plaintiff-Appellee

v.

OSCAR HERNANDEZ-MEDRANO

                                       Defendant-Appellant
                           No. 07-10378 c/w
                 Nos. 07-10524, 07-10539, and 07-10550


                           Consolidated with
                             No. 07-10539
                          Summary Calendar


UNITED STATES OF AMERICA

                                       Plaintiff-Appellee

v.

LEODEGARDO RODRIGUEZ-MENDOZA

                                       Defendant-Appellant


                           Consolidated with
                             No. 07-10550
                          Summary Calendar


UNITED STATES OF AMERICA

                                       Plaintiff-Appellee

v.

JAVIER GAMINO-PEREZ

                                       Defendant-Appellant


              Appeals from the United States District Court
                   for the Northern District of Texas
                       USDC No. 1:06-CR-61-ALL
                      USDC No. 5:06-CR-110-ALL
                       USDC No. 1:06-CR-66-ALL
                      USDC No. 5:06-CR-102-ALL


Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.

                                   2
                              No. 07-10378 c/w
                    Nos. 07-10524, 07-10539, and 07-10550

PER CURIAM:*
      Jose   Candelario    Olivares-Benavides,    Oscar   Hernandez-Medrano,
Leodegardo Rodriguez-Mendoza, and Javier Gamino-Perez appeal the sentences
imposed following their guilty plea convictions for illegal reentry after
deportation in violation of 8 U.S.C. § 1326.      They argue that procedural
reasonableness required the district court to consider upward departures to their
sentences under U.S.S.G. § 4A1.3 for their under-represented criminal histories
before it imposed their non-guidelines sentences and that their sentences were
substantively unreasonable because the district court failed to apply § 4A1.3,
because it put too much weight on the fact that the defendants had prior DUIs
and received light sentences for those DUIs, and because it clearly erred in
balancing the sentencing factors.
      We review sentences for reasonableness in light of the sentencing
considerations set forth in 18 U.S.C. § 3553(a). United States v. Sanchez-
Ramirez, 497 F.3d 531, 534 (5th Cir. 2007). The Guidelines provide but a “rough
approximation” of a sentence that will meet all objectives of § 3553(a). Rita v.
United States, 127 S. Ct. 2456, 2464-65 (2007).
      The defendants’ argument that the district court had to consider § 4A1.3
before imposing their non-guidelines sentences has previously been rejected by
this court. See United States v. Mejia-Huerta, 480 F.3d 713, 723 & n.43 (5th Cir.
2007), petition for cert. filed (April 18, 2007) (No. 06-1381). The defendants’
argument of substantive unreasonableness is also without merit. The district
court gave extensive reasons for imposing their non-guidelines sentences,
including such § 3553(a) factors as the defendants’ personal history and
characteristics, the defendants’ criminal histories, the need to promote respect


      *
      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.

                                       3
                              No. 07-10378 c/w
                    Nos. 07-10524, 07-10539, and 07-10550

for the law, the need to deter future criminal conduct, and the need to protect
the public. See § 3553(a); United States v. Smith, 440 F.3d 704, 709 (5th Cir.
2006).
      The defendants argue that the district court was required to provide them
with notice before imposing an above-guidelines sentence. This argument is
foreclosed by circuit precedent. See Mejia-Huerta, 480 F.3d at 722-23; Ketchum
v. Gulf Oil Corp., 798 F.2d 159, 162 (5th Cir. 1986).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendants
also challenge 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 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008). The defendants’ sentences are AFFIRMED.




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