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

                                                                  FILED
                                                                 March 11, 2008
                                No. 07-50557
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

LEONARDO ARAGON-REYNA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 1:06-CR-13-ALL


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
      Leonardo Aragon-Reyna (Aragon) appeals his sentence of sixty months
imposed for his illegal reentry into the United States after having been removed
following a felony conviction. In a prior appeal to this court, Aragon argued that
his prior conviction was improperly characterized as an aggravated felony in
calculating his guidelines range sentence, and the Government agreed in light



      *
      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should not be published and is not precedent except under the limited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. 07-50557

of the Supreme Court’s recent ruling in Lopez v. Gonzales, 127 S. Ct. 625 (2006).
In light of the Supreme Court’s holding, we agreed with the parties, vacated
Aragon’s sentence, and remanded the case to the district court. On remand,
Aragon’s revised guidelines range was calculated as twenty-one to twenty-seven
months of imprisonment, and the district court resentenced Aragon to sixty
months of imprisonment, to be followed by three years of supervised release.
      Aragon contends that his above-guidelines sentence was unreasonable
because the district court “ignored” the recalculated recommendation under the
Guidelines and because the district court gave too much weight to Aragon’s
criminal history when that same criminal history had already been factored into
the guidelines range. Because the district court here did not indicate that it was
upwardly departing or reference a Guidelines upward departure provision, we
treat the sentence as a nonguidelines sentence. See United States v. Armendariz,
451 F.3d 352, 358 n. 5 (5th Cir.2006).
      Aragon’s claim that the district court “ignored” the Guidelines on remand
is belied by the court’s detailed explanation of the above-guidelines sentence.
The district court adopted a four-page order explaining its decision to impose a
sentence above the guidelines range. In addition, the court expressly noted that
the Guidelines were advisory, and it used the range it had calculated as a frame
of reference. The court properly considered aspects of Aragon’s criminal history
that were undervalued or not reflected in his guidelines calculation, especially
his multiple arrests for various crimes and the pace of his criminal activity in
such a short time span during his unlawful presence in the United States. The
district court, citing 18 U.S.C. § 3553(a), found that a sixty-month term of
imprisonment was necessary, “considering the nature and circumstances of this
defendant’s conduct” and “his complete disregard for the laws of the United
States, to afford adequate deterrence to his criminal activity and protect the
public from this defendant’s further conduct.” In light of the district court’s
detailed justification for its above-guidelines sentence and Aragon’s criminal

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                                 No. 07-50557

history, we affirm the sixty-month sentence imposed as reasonable. See Gall v.
United States, 128 S. Ct. 586, 596-601 (2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Aragon 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).
      AFFIRMED.




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