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

                                                               FILED
                                                               June 10, 2008
                               No. 07-10708
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

v.

LINO MESIA OCAMPO-MEJIA,

                                         Defendant-Appellant.


                Appeal from the United States District Court
                     for the Northern District of Texas
                        USDC No. 3:06-CR-389-ALL


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
     Lino Mesia Ocampo-Mejia (Ocampo) pleaded guilty to illegal reentry after
deportation from the United States. He appeals his conviction and sentence.
     Ocampo contends that the district court erred by relying on United States
v. Aguirre-Villa, 460 F.3d 681, 683 (2006), for the proposition that sentence
disparities caused by the existence of early disposition programs in some
districts are not “unwarranted” under 18 U.S.C. § 3553(a)(6). He also contends



     *
      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should not be published and is not precedent except under the limited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. 07-10708

that Aguirre-Villa wrongly constrained the district court from deviating from the
Guidelines based on a disagreement with guidelines policy. He asserts that
Kimbrough v. United States, 128 S. Ct. 558, 573-74 (2007), overruled Aguirre-
Villa by holding that courts are not prohibited from deviating from the
Guidelines when they disagree with guidelines policies. Kimbrough did not
overrule Aguirre-Villa because “Kimbrough addressed only a district court’s
discretion to vary from the Guidelines based on a disagreement with Guideline,
not Congressional, policy.” United States v. Gomez-Herrera, __F.3d__, 2008 WL
886091, *7 (5th Cir. 2008). Any sentencing disparity that results from the
presence or absence of a fast track or early disposition program is intended by
Congress and is therefore not “unwarranted.” Id. at *6. This contention lacks
merit.
      Ocampo contends that his 1993 Texas conviction for indecency with a
minor by exposure is not sexual abuse of a minor and thus not a crime of
violence for the purpose of increasing his federal sentence. Indecency with a
minor by exposure is sexual abuse of a minor. United States v. Zavala-Sustaita,
214 F.3d 601, 603-08 (5th Cir. 2000). The reasoning of Zavala-Sustaita remains
sound, and that decision controls this case. See United States v. Najera-Najera,
519 F.3d 509, 512 n.2 (5th Cir. 2008).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Ocampo 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 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).
      Ocampo identifies no error in his conviction or sentence. The judgment of
the district court is AFFIRMED.


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