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

                                                                 FILED
                                                                July 16, 2008
                               No. 07-10925
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE VENCES-CASTENEDA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:07-CR-63-1
                        USDC No. 3:07-MJ-0041-ALL


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Jose Vences-Casteneda (Vences) appeals his sentence following his guilty-
plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. Vences
contends that the district court was improperly prevented from considering
during sentencing the disparity caused by the lack of an early disposition
sentencing program in the Northern District of Texas. Specifically, he contends
that this court’s ruling in United States v. Aguirre-Villa, 460 F.3d 681, 682-83


      *
      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should not be published and is not precedent except under the limited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. 07-10925

(5th Cir. 2006), cert. denied, __ U.S. __ (2007)(No. 06-7792), which held that
sentencing courts do not err by refusing to factor in such disparities, was
overruled by the Supreme Court’s decision in Kimbrough v. United States, 128
S. Ct. 558 (2007). Although the parties disagree regarding the applicable
standard of review, this court need not resolve the disagreement because
Vences’s argument fails regardless of which standard is applied. We rejected
precisely the same argument in United States v. Gomez-Herrera, 523 F.3d 554,
562-64 (5th Cir. 2008).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000),Vences 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 argument is 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).
      AFFIRMED.




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