* 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should not be published and is not precedent except under the limited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. 07-40456

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MOISES RAMIREZ-JAMAICA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-1738-1

Before KING, DENNIS, and OWEN, Circuit Judges. 

PER CURIAM:*

Moises Ramirez-Jamaica (Ramirez) appeals his conviction and 46-month

sentence for illegal reentry after deportation.

Ramirez first argues that the district court failed to clearly apply the

sentencing factors of 18 U.S.C. § 3553(a) and failed to explain its reasons for the

sentence imposed. Because Ramirez failed to object on this basis below, we

review for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th 

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2008

Charles R. Fulbruge III

Clerk
No. 07-40456

2

Cir. 2007), cert. denied, 2008 WL 227315 (June 23, 2008) (No. 07-8978). Both the

Supreme Court and this court have held that, if a sentence is within a properly

calculated guidelines range, little explanation is required. See Rita v. United

States, 127 S. Ct. 2456, 2468-69 (2007); United States v. Mares, 402 F.3d 511,

519 (5th Cir. 2005). If the sentence is within a properly calculated guidelines

range, it also can be presumed that the sentencing court considered the § 3553

factors. See Rita, 127 S. Ct. at 2463-65. In the instant case, the district court’s

oral statements at sentencing and its written statement of reasons set out the

applicable guideline calculations and adopted the presentence investigation

report without change; we have held thatthe requirementthatthe district court

explain the reasons for the sentence imposed “is satisfied when the district court

indicates the applicable guideline range and how it is chosen.” United States v.

Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). Therefore, Ramirez has not

shown that the district court committed plain error.

Ramirez also seeks to preserve for further review an argument that this

court’s precedent effectively reinstated a mandatory Guidelines scheme.

Because Ramirez did not raise this argument below, review is for plain error.

See United States v. Campos-Maldonado, __ F.3d __, No. 07-20715, 2008 WL

2357364 at *2 (5th Cir. 2008). As we did in Campos-Maldonado, we conclude

that this argument does not rise to the level of “reversible plain error.” Id.

Furthermore, Ramirez’s sentence, at the bottom of the correctly determined

guidelines range, is entitled to a presumption of reasonableness that Ramirez

has not overcome. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

Finally, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Ramirez

challenges the constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than elements of the
No. 07-40456

3

offense that must be found by a jury. This argument is foreclosed by

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

Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872

(2008).

AFFIRMED.