* 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. 07-50624

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RODOLFO LOPEZ-GONZALEZ, also known as Rudolfo Lopez

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-128-ALL

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rodolfo Lopez-Gonzalez appeals his sentence following conviction for being

found illegally in the United States following a prior deportation. 8 U.S.C. §

1326(a), (b). The government moved for summary affirmance, arguing that all

of Lopez-Gonzalez’s arguments are foreclosed by our precedent or Supreme

Court precedent. We agree with the government, and grant summary

affirmance.

United States Court of Appeals

Fifth Circuit

F I L E D

April 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-50624

2

Lopez-Gonzalez argues that his sentence was unreasonable under

18 U.S.C. § 3553(a)(6) and United States v. Booker, 543 U.S. 220 (2005), because

defendants in other districts receive sentences below the Guidelines’ range as a

result of fast-track departures. According to Lopez-Gonzalez, the district court

should have taken into consideration the fact that the jurisdiction in which he

was sentenced did not provide for fast-track departures, and reduced his

sentence to draw it in line with those jurisdictions that do offer fast-track

options. Lopez-Gonzalez’s argument is foreclosed by circuit precedent. See

United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.), cert. denied, 127 S.

Ct. 3053 (2007), (holding that a district court’s refusalto factor in the sentencing

disparity caused by early disposition programs does not render a sentence

unreasonable under Booker); see also United States v. Gomez-Herrera, No. 07-

10153, )) F.3d )) , 2008 WL 886091 (5th Cir. April 3, 2008), (reaffirming

Aguirre-Villa and holding that Kimbrough v. UnitedStates, 128 S. Ct. 558 (2007)

did not impact our decision in Aguirre-Villa).

Lopez-Gonzalez argues that the district court erred by considering two of

his convictions as separate offenses, when they should have been counted as a

single offense in calculating his criminal history. Lopez -Gonzales was convicted

of a robbery charge in 1997 and sentenced to probation. He was convicted and

sentenced for aggravated battery in 2002, which violated his probation. LopezGonzales received his 2002 sentence and had has 1997 probation revoked in a

consolidated sentence. Lopez-Gonzalez contends that the robbery and battery

offenses were related because they had been consolidated for sentencing. LopezGonzalez does not dispute thatthe sentences were imposed for factually distinct

offenses, with separate arrests. When sentences for factually distinct offenses

are imposed “on the same day and/or in the same proceeding,” those offenses are

not considered related under the sentencing guidelines manual § 4A1.2. United

States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998). Further, it was the

revocation of parole related to the 1997 offense, not the offense itself, that was
No. 07-50624

3

consolidated with the 2002 offense for sentencing. The district court did not err

in determining thatLopez-Gonzalez’s convictions were unrelated for the purpose

of calculating his criminal history.

In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Lopez-Gonzalez

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, 492F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL59441

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

Given the foregoing, the Government’s motion for summary affirmance is

GRANTED, and its alternative motion for an extension of time to file a brief is

DENIED as moot. The district court’s sentence is AFFIRMED.