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

                                                                   FILED
                                                                 February 6, 2008
                                 No. 06-51219
                               Summary Calendar              Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MIGUEL REYNA-MORENO

                                            Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:06-CR-576-ALL


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
      Miguel Reyna-Moreno (Reyna) pleaded guilty to illegal reentry after
deportation and was sentenced to 41 months of imprisonment and three years
of supervised release.
      Reyna challenges the presumption of reasonableness that attaches to a
within-guidelines sentence under this court’s post-Booker1 jurisprudence. As



      *
      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should not be published and is not precedent except under the limited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.
      1
          United States v. Booker, 543 U.S. 220 (2005).
                                   No. 06-51219

Reyna concedes, this argument is foreclosed under Rita v. United States, 127
S. Ct. 2456, 2462 (2007).
      Reyna further contends that the district court did not give sufficient
reasons when denying his request for a variance from the guideline range and
that his sentence is unreasonable under the factors listed in 18 U.S.C. § 3553(a).
The district court gave sufficient reasons for sentencing Reyna within the
guideline range. See Rita, 127 S. Ct. at 2469. Additionally, Reyna’s sentence
within the guideline range was presumptively reasonable, and Reyna has not
shown that “the sentence . . . constitute[s] a clear error in the court’s exercise of
its broad sentencing discretion” as to whether the sentence “(1) does not account
for a factor that should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor; or (3) represents a clear error of
judgment in balancing the sentencing factors.” United States v. Nikonova, 480
F.3d 371, 376 (5th Cir.) (internal quotation marks and citation omitted), cert.
denied, 128 S. Ct. 163 (2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Reyna 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).
      AFFIRMED.




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