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

                                                                   FILED
                                                                December 11, 2007
                                No. 06-40994
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ALLAN ROBERTO RIVERA-GARCIA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                        USDC No. 5:04-CR-1081-ALL


Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
      Allan Roberto Rivera-Garcia was convicted of violating 8 U.S.C. § 1326 by
being found in the United States without permission, following removal. He
appeals the sentence imposed in his case following this court’s remand for
resentencing in light of United States v. Booker, 543 U.S. 220 (2005).
      Rivera-Garcia challenges the constitutionality of § 1326(b)’s treatment of
prior felony and aggravated felony convictions as sentencing factors rather than



      *
      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should not be published and is not precedent except under the limited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. 06-40994

elements of the offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). A panel of this court rejected Rivera-Garcia’s
Apprendi-based argument in his initial appeal. United States v. Rivera-Garcia,
167 F. App’x 989, 989-90 (5th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
court’s previous decision stands as the law of the case. See United States v.
Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998).
      Rivera-Garcia also contends that his sentence is unreasonable as a matter
of law because it was imposed pursuant to a de facto mandatory sentencing
scheme. He argues that post-Booker rulings issued by this court have effectively
reinstated the mandatory sentencing system found unconstitutional in Booker.
This court must follow its precedent addressing post-Booker sentencing unless
an intervening en banc or Supreme Court decision renders the decisions
inapplicable. See In re Brown, 457 F.3d 392, 395 n.1 (5th Cir. 2006). Rivera-
Garcia has cited no such decision.
      Rivera-Garcia’s sentence, which falls within his properly calculated
sentencing guideline range, is presumed reasonable. See Rita v. United States,
127 S. Ct. 2456, 2462-66 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Giving “great deference” to that sentence, and recognizing that the
sentencing court considered all the factors for a fair sentence under 18 U.S.C.
§ 3553(a), we conclude that Rivera-Garcia has failed to rebut the presumption
that his sentence was reasonable. See United States v. Nikonova, 480 F.3d 371,
376 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007).
      AFFIRMED.




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