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

                                                                            FILED
                                                                         February 27, 2008
                                     No. 06-51259
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ROMAN DEL ANGEL-POSADA, also known as Romen Pocadec

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:06-CR-676


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.

PER CURIAM:*
       Roman Del Angel-Posada (Del Angel) appeals his conviction and 48-month
sentence of imprisonment for unlawful reentry in violation of 8 U.S.C. § 1326.
In his brief filed prior to the Supreme Court’s decision in Rita v. United States,
127 S. Ct. 2456 (2007), Del Angel argues that this court’s presumption that
sentences within a properly calculated guidelines range are reasonable
effectively reinstates the mandatory guidelines regime struck down in United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51259

States v. Booker, 543 U.S. 220 (2005). In Rita, the Supreme Court affirmed that
a “court of appeals may apply a presumption of reasonableness to a district court
sentence that reflects a proper application of the Sentencing Guidelines.” 127 S.
Ct. at 2462. Accordingly, Del Angel’s challenge to the presumption fails.
      Del Angel also argues that his sentence was unreasonable on its merits.
Because Del Angel’s sentence is “within a properly calculated Guideline range,”
it is “presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Del Angel’s arguments that the guidelines range overstates the
seriousness of his offense is insufficient to overcome the presumption. See
United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.), cert. denied, 128 S. Ct.
163 (2007) (setting forth standard for rebutting presumption). In other words,
he has not shown that his “special circumstances are special enough that, in
light of § 3553(a), they require a sentence lower than the sentence the Guidelines
provide.” Rita, 127 S. Ct. at 2470.
      Del Angel also argues for the first time on appeal that his sentence was
unreasonable because his “age, 44, . . . makes it unlikely that he will commit
future crimes.” Because he did not object on this basis below, Del Angel’s
challenge to the reasonableness of his sentence based on his age is reviewed for
plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007); see
also United States v. Olano, 507 U.S. 725, 732 (1993) (plain error standard).
Del Angel has not overcome the presumption of reasonableness that applies to
his sentence on appeal, see Alonzo, 435 F.3d at 554, much less has he
demonstrated that the district court committed plain error in sentencing him
simply because of his age at the time the sentence was imposed. See Peltier, 505
F.3d at 392.
      Del Angel also 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 in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000).     This court has held that this issue is “fully

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                                  No. 06-51259

foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
      AFFIRMED.




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