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

                                                                  FILED
                                                                 January 7, 2008
                                No. 07-40110
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JESUS ALEJANDRO GARCIA-MIRANDA, also known as Alejandro Miranda,
also known as Alex Miranda

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:06-CR-662-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Jesus Alejandro Garcia-Miranda appeals the sentence imposed following
his guilty-plea conviction for being found unlawfully in the United States after
deportation. Garcia-Miranda argues that his sentence is unreasonable because
the district court failed to consider or give reasons for rejecting his diminished
capacity argument, did not inquire into his current mental condition, and did not
properly balance the factors in 18 U.S.C. § 3553(a).


      *
      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should not be published and is not precedent except under the limited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. 07-40110

      The district court imposed a 60-month sentence within the advisory
guidelines range which is entitled to a rebuttable presumption of
reasonableness.    See Rita v. United States, 127 S. Ct. 2457, 2468 (2007);
United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006). After considering
Garcia-Miranda’s written request for a downward departure, the information in
the presentence report, and the parties’ arguments concerning a downward
departure at the sentencing hearing, the district court implicitly determined that
a downward departure based on Garcia-Miranda’s diminished capacity was not
warranted and that a 60-month sentence was appropriate. Although the district
court did not provide any written or oral reasons for denying Garcia-Miranda’s
motion for a downward departure or for the sentence imposed, little explanation
is required when a district court imposes a sentence within a properly calculated
guidelines range. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Garcia-Miranda has not shown that the district court failed to consider his
diminished capacity argument or any other factor that should have received
significant weight, gave significant weight to an irrelevant or improper factor,
or made a clear error of judgment in balancing the sentencing factors.
See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Therefore,
Garcia-Miranda has not shown that his 60-month sentence is unreasonable.
      Garcia-Miranda argues that the district court did not clearly and
unequivocally give him the opportunity to allocute concerning his mental
condition at the sentencing hearing. Garcia-Miranda concedes that he did not
raise this issue in the district court. Therefore, review is limited to plain error.
See United States v. Reyna, 358 F.3d 344, 350-53 (5th Cir. 2004) (en banc). Even
if there was error that was plain and that affected Garcia-Miranda’s substantial
rights, we decline to hold that the error “seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” See United States v. Magwood, 445
F.3d 826, 829-30 (5th Cir. 2006). Although Garcia-Miranda may have been able
to provide current information concerning his disability or how it affected his

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offense, he has not identified any specific additional information that he would
have provided, and thus, he has not demonstrated that his statement would
have provided an “objective basis that would have moved the trial court to grant
a lower sentence.” See id. at 830.
      Garcia-Miranda also maintains that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that
8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied,
(Jan. 7, 2008) (No. 07-6202).
      AFFIRMED.




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