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

                                                                  FILED
                                                                October 25, 2007
                                No. 06-41467
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MELCHOR ALCARAZ-BARRERA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 5:06-CR-401-ALL


Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Melchor Alcaraz-Barrera (Alcaraz) appeals his guilty-plea conviction and
sentence for being illegally present in the United States following deportation.
He argues that his sentence is unreasonable as a matter of law because this
court’s use of a presumption of reasonableness for sentences imposed within the
properly calculated guidelines range effectively reinstates the mandatory
guidelines regime struck down in United States v. Booker, 543 U.S. 220 (2005).



      *
      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should not be published and is not precedent except under the limited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. 06-41467

This argument is foreclosed. See Rita v. United States, 127 S. Ct. 2456, 2462
(2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Alcaraz 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 court has held that this issue is “fully
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).
      The judgment of the district court is AFFIRMED.




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