                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                      REVISED AUGUST 29, 2006
                                                                August 15, 2006
                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit             Charles R. Fulbruge III
                                                                  Clerk


                             No. 05-50978


                            UNITED STATES,

                                                  Plaintiff-Appellee,


                                VERSUS


                      ROBERTO AGUIRRE-VILLA,
                       a/k/a Jose Hernandez,

                                                 Defendant-Appellant.




            Appeal from the United States District Court
                  for the Western District of Texas

                            (3:04-CR-687)

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:

     Treating the petition for rehearing as a petition for en banc

rehearing, the petition for rehearing is DENIED. Treating the

petition for rehearing as a petition for panel rehearing, the

petition for rehearing is GRANTED for the limited purpose of

withdrawing the prior panel opinion and substituting this opinion

therefor.

     This is a post-Booker case in which Appellant Roberto Aguirre-

Villa   (“Aguirre-Villa”)   challenges   the   reasonableness     of   his
sentence under United States v. Booker, 543 U.S. 220 (2005), and

the constitutionality of his sentence under Apprendi v. New Jersey,

530 U.S. 466 (2000). We affirm his sentence.

                                I.

     In 2004, Aguirre-Villa pled guilty to illegal reentry and was

sentenced to 77 months in prison. In 2005, this Court granted the

parties’ agreed motion to remand for resentencing post-Booker.

     At resentencing, Aguirre-Villa asked the district court to

impose a sentence below the applicable guideline sentencing range.

He argued that a sentence within the applicable 77 to 96 month

range would be unreasonable because the Western District of Texas

lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would

have permitted a downward departure of up to four levels in a

district with such a program. Prior to his initial sentencing,

Aguirre-Villa had also challenged (under Apprendi) the sixteen-

level enhancement imposed by the court for a prior aggravated

felony conviction.

     The district court rejected Aguirre-Villa’s Apprendi challenge

and decided that although the guideline range would have been lower

(52 to 78 months instead of 77 to 96 months) had Aguirre-Villa been

arrested in an adjacent district (the District of New Mexico), it

would reimpose a 77-month sentence. Aguirre-Villa timely appealed.

                               II.

A.   Booker Challenge


                                2
      Post-Booker,   we   continue       to   review     a    district   court’s

interpretation and application of the guidelines de novo and its

findings of fact for clear error. United States v. Caldwell, 448

F.3d 287, 290 (5th Cir. 2006) (citing United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005); United States v. Creech, 408

F.3d 264, 270 & n.2 (5th Cir.), cert. denied, 126 S. Ct. 777

(2005)).   The   district    court’s          sentence       is   reviewed   for

reasonableness. Id. (citing Booker, 543 U.S. at 261; United States

v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005)). “In determining an appropriate sentence, a district court

must consider as guideposts a properly calculated guideline range

and the sentencing factors in 18 U.S.C. § 3553(a).” Id. (citing

Mares, 402 F.3d at 518-19; United States v. Duhon, 440 F.3d 711,

714 (5th Cir. 2006)). “If a district court sentences a defendant

within a properly calculated guideline range, that sentence enjoys

a presumption of reasonableness.” Id. (citing United States v.

Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006)).

      In this case, the district court sentenced Aguirre-Villa

within the applicable guideline range.1 In fact, it sentenced him

to the shortest sentence in that range, 77 months. Accordingly, his

sentence is entitled to a presumption of reasonableness. Aguirre-

Villa has not overcome that presumption. Aguirre-Villa’s only



  1
   Aguirre-Villa concedes this point.

                                     3
challenge to the reasonableness of his sentence is that it does not

fully account for the factors contained in 18 U.S.C. § 3553(a),

specifically § 3553(a)(2)(A), “the need for the sentence imposed to

reflect the seriousness of the offense,” and § 3553(a)(6), “the

need to avoid unwarranted sentence disparities among defendants

with   similar      records   who    have     been   found   guilty    of   similar

conduct.”2 According to Aguirre-Villa, his sentence failed to

reflect that his illegal reentry was, “at bottom,” an international

trespass, not a crime of violence or a crime that posed a danger to

others. Further, Aguirre-Villa argues that his sentence failed to

reflect the need to avoid a sentence disparity among defendants

convicted      in   districts      with   early      disposition    programs     and

defendants convicted in districts without such programs.

       The   district    court      resentenced      Aguirre-Villa     post-Booker

pursuant to an advisory application of the Sentencing Guidelines.

The    court   considered     and    ultimately       rejected     Aguirre-Villa’s

sentencing disparity argument. Further, the court considered all of

§ 3553(a)’s factors, including Aguirre-Villa’s extensive criminal

history      and    history   of     recidivism,      before     deciding   on   an

appropriate sentence. The refusal to factor in, when sentencing a

defendant, the sentencing disparity caused by early disposition


  2
   Aguirre-Villa presents additional arguments regarding § 3553(a)
in his reply brief, but this Court will not ordinarily consider
arguments raised for the first time in a reply brief. See United
States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
Accordingly, we decline to address them.

                                          4
programs       does    not    render    a     sentence    unreasonable.    Section

3553(a)(6) is but one factor in a list of factors to be considered;

moreover, Congress must have thought the disparity warranted when

it     authorized      early    disposition        programs    without    altering

§ 3553(a)(6). See United States v. Marcial-Santiago, 447 F.3d 715,

719 (9th Cir. 2006); United States v. Montes-Pineda, 445 F.3d 375,

379-80 (4th Cir. 2006); United States v. Galicia-Cardenas, 443 F.3d

553, 555 (7th Cir. 2006); United States v. Martinez-Martinez, 442

F.3d 539, 543 (7th Cir. 2006); United States v. Jimenez-Beltre, 440

F.3d    514,    519    (1st    Cir.    2006)    (en   banc);   United    States   v.

Sebastian, 436 F.3d 913, 916 (8th Cir. 2006); United States v.

Morales-Chaires, 430 F.3d 1124, 1131 (10th Cir. 2005); United

States v. Martinez-Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005);

United States v. Hernandez-Cervantes, 161 F. App’x 508, 512 (6th

Cir. 2005).       We   agree    with    the     Eighth   Circuit’s   reasoning    in

Sebastian that

       to require [a] district court to vary from the advisory
       guidelines based solely on the existence of early
       disposition programs in other districts would conflict
       with the decision of Congress to limit the availability
       of such sentence reductions to select geographical areas,
       and with the Attorney General’s exercise of prosecutorial
       discretion to refrain from authorizing early disposition
       agreements in [the district in question].

436 F.3d at 916. Therefore, after reviewing the briefs and the

record and finding no persuasive reason to disturb the district

court’s sentence, we are convinced that Aguirre-Villa’s sentence is


                                            5
reasonable under Booker and Fifth Circuit precedent.

B.   Apprendi Challenge

     Aguirre-Villa   recognizes    that   his   Apprendi   challenge   is

foreclosed by circuit precedent and raises it only to preserve it

for possible Supreme Court review. See United States v. Valdez-

Maltos, 443 F.3d 910, 912 (5th Cir. 2006).

                                  III.

     Accordingly, Aguirre-Villa’s sentence is AFFIRMED.




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