* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40333

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO RIVERA-CERDA, also known as Gabriel Garza

Mejia-Cerda, also known as Sergio Hernandez-Garcia,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:01-CR-249-ALL

--------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Sergio Rivera-Cerda appeals from the sentence imposed

following revocation of his term of supervised release. RiveraCerda argues that his sentence was clearly unreasonable, both in

terms of its length and the fact that it was to run consecutively

to his other sentence, because: (1) it was unfair in light of

the relevant facts; (2) the district court failed to give due

consideration to the factors in 18 U.S.C. § 3553(a), as required

by United States v. Booker, 543 U.S. 220 (2005); (3) the district
No. 06-40333

-2-

court rigidly adhered to the relevant policy statements in the

Sentencing Guidelines; (4) it was grossly disproportionate to the

crime, thereby violating the Eighth Amendment; and (5) the

Sentencing Commission and the Sentencing Guidelines violate the

separation of powers doctrine and the due process clause of the

Fifth Amendment.

The Government has moved for dismissal of the appeal or for

summary affirmance on the ground that this court lacks

jurisdiction to consider Rivera-Cerda’s appeal under 18 U.S.C.

§ 3742(a)(4). Because Rivera-Cerda cannot prevail on the merits

of his appeal, we pretermit consideration of the jurisdictional

issue. See United States v. Weathersby, 958 F.2d 65, 66 (5th

Cir. 1992). The Government’s motion for dismissal of the appeal

or for summary affirmance is therefore denied. The Government’s

alternative request for an extension of time to file an appeal

brief is also denied as unnecessary.

The district court properly considered the 18 U.S.C.

§ 3553(a) factors when imposing Rivera-Cerda’s sentence. See

United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001). 

Rivera-Cerda’s sentence was neither unreasonable nor plainly

unreasonable. See United States v. Hinson, 429 F.3d 114, 120

(5th Cir. 2005). Moreover, his sentence was not

unconstitutionally disproportionate. See United States v.

Sullivan, 895 F.2d 1030, 1031-32 (5th Cir. 1990).
No. 06-40333

-3-

Rivera-Cerda’s separation of powers challenge to the

Sentencing Commission and the Sentencing Guidelines is foreclosed

under Booker. 543 U.S. at 242-43. Moreover, this court will not

consider Rivera-Cerda’s due process argument because it was

inadequately briefed. See United States v. Torres-Aguilar, 352

F.3d 934, 936 n.2 (5th Cir. 2003); FED. R. APP. P. 28(a)(9).

AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;

ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY.