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

                                                                            FILED
                                                                           April 17, 2008
                                     No. 07-50624
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

RODOLFO LOPEZ-GONZALEZ, also known as Rudolfo Lopez

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:07-CR-128-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Rodolfo Lopez-Gonzalez appeals his sentence following conviction for being
found illegally in the United States following a prior deportation. 8 U.S.C. §
1326(a), (b). The government moved for summary affirmance, arguing that all
of Lopez-Gonzalez’s arguments are foreclosed by our precedent or Supreme
Court precedent.        We agree with the government, and grant summary
affirmance.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50624

      Lopez-Gonzalez argues that his sentence was unreasonable under
18 U.S.C. § 3553(a)(6) and United States v. Booker, 543 U.S. 220 (2005), because
defendants in other districts receive sentences below the Guidelines’ range as a
result of fast-track departures. According to Lopez-Gonzalez, the district court
should have taken into consideration the fact that the jurisdiction in which he
was sentenced did not provide for fast-track departures, and reduced his
sentence to draw it in line with those jurisdictions that do offer fast-track
options. Lopez-Gonzalez’s argument is foreclosed by circuit precedent. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.), cert. denied, 127 S.
Ct. 3053 (2007), (holding that a district court’s refusal to factor in the sentencing
disparity caused by early disposition programs does not render a sentence
unreasonable under Booker); see also United States v. Gomez-Herrera, No. 07-
10153, )) F.3d )) , 2008 WL 886091 (5th Cir. April 3, 2008), (reaffirming
Aguirre-Villa and holding that Kimbrough v. United States, 128 S. Ct. 558 (2007)
did not impact our decision in Aguirre-Villa).
      Lopez-Gonzalez argues that the district court erred by considering two of
his convictions as separate offenses, when they should have been counted as a
single offense in calculating his criminal history. Lopez -Gonzales was convicted
of a robbery charge in 1997 and sentenced to probation. He was convicted and
sentenced for aggravated battery in 2002, which violated his probation. Lopez-
Gonzales received his 2002 sentence and had has 1997 probation revoked in a
consolidated sentence. Lopez-Gonzalez contends that the robbery and battery
offenses were related because they had been consolidated for sentencing. Lopez-
Gonzalez does not dispute that the sentences were imposed for factually distinct
offenses, with separate arrests. When sentences for factually distinct offenses
are imposed “on the same day and/or in the same proceeding,” those offenses are
not considered related under the sentencing guidelines manual § 4A1.2. United
States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998).          Further, it was the
revocation of parole related to the 1997 offense, not the offense itself, that was

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consolidated with the 2002 offense for sentencing. The district court did not err
in determining that Lopez-Gonzalez’s convictions were unrelated for the purpose
of calculating his criminal history.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Lopez-Gonzalez
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 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441
(Jan. 7, 2008) (No. 07-6202).
      Given the foregoing, the Government’s motion for summary affirmance is
GRANTED, and its alternative motion for an extension of time to file a brief is
DENIED as moot. The district court’s sentence is AFFIRMED.




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