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should not be published and is not precedent except under the limited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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40110

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JESUS ALEJANDRO GARCIA-MIRANDA, also known as Alejandro Miranda,

also known as Alex Miranda

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-662-1

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jesus Alejandro Garcia-Miranda appeals the sentence imposed following

his guilty-plea conviction for being found unlawfully in the United States after

deportation. Garcia-Miranda argues that his sentence is unreasonable because

the district court failed to consider or give reasons for rejecting his diminished

capacity argument, did notinquire into his current mental condition, and did not

properly balance the factors in 18 U.S.C. § 3553(a). 

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-40110

2

The district court imposed a 60-month sentence within the advisory

guidelines range which is entitled to a rebuttable presumption of

reasonableness. See Rita v. United States, 127 S. Ct. 2457, 2468 (2007);

United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006). After considering

Garcia-Miranda’s written request for a downward departure,the information in

the presentence report, and the parties’ arguments concerning a downward

departure atthe sentencing hearing, the district court implicitly determined that

a downward departure based on Garcia-Miranda’s diminished capacity was not

warranted and that a 60-month sentence was appropriate. Although the district

court did not provide any written or oral reasons for denying Garcia-Miranda’s

motion for a downward departure or for the sentence imposed, little explanation

is required when a district courtimposes a sentence within a properly calculated

guidelines range. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

Garcia-Miranda has not shown that the district court failed to consider his

diminished capacity argument or any other factor that should have received

significant weight, gave significant weight to an irrelevant or improper factor,

or made a clear error of judgment in balancing the sentencing factors.

See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Therefore,

Garcia-Miranda has not shown that his 60-month sentence is unreasonable.

Garcia-Miranda argues that the district court did not clearly and

unequivocally give him the opportunity to allocute concerning his mental

condition at the sentencing hearing. Garcia-Miranda concedes that he did not

raise this issue in the district court. Therefore, review is limited to plain error.

See United States v. Reyna, 358 F.3d 344, 350-53 (5th Cir. 2004) (en banc). Even

if there was error that was plain and that affected Garcia-Miranda’s substantial

rights, we decline to hold thatthe error “seriously affected the fairness, integrity,

or public reputation of judicial proceedings.” See United States v. Magwood, 445

F.3d 826, 829-30 (5th Cir. 2006). Although Garcia-Miranda may have been able

to provide current information concerning his disability or how it affected his
No. 07-40110

3

offense, he has not identified any specific additional information that he would

have provided, and thus, he has not demonstrated that his statement would

have provided an “objective basis that would have moved the trial court to grant

a lower sentence.” See id. at 830.

Garcia-Miranda also maintains that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that

8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.

United States v.Pineda-Arrellano, 492F.3d 624, 625 (5th Cir.2007), cert. denied,

(Jan. 7, 2008) (No. 07-6202).

AFFIRMED.