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

                                                                   FILED
                                                                December 12, 2007
                                No. 06-20989
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE MARMOLEJO-SANCHEZ, also known as Jesus Rodriguez, also known as
Jesus Rodriguez-Marmolejo, also known as Ismael Rodriguez-Marmolejo

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 4:06-CR-309-ALL


Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
      Jose Marmolejo-Sanchez (Marmolejo) appeals his guilty-plea conviction
and 24-month 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


      *
      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should not be published and is not precedent except under the limited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. 06-20989

U.S. 220 (2005). This argument is foreclosed. See Rita v. United States, 127
S. Ct. 2456, 2465 (2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Marmolejo
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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