* 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should not be published and is not precedent except under the limited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. 07-50557

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LEONARDO ARAGON-REYNA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CR-13-ALL

Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit

Judges.

PER CURIAM:*

Leonardo Aragon-Reyna (Aragon) appeals his sentence of sixty months

imposed for his illegal reentry into the United States after having been removed

following a felony conviction. In a prior appeal to this court, Aragon argued that

his prior conviction was improperly characterized as an aggravated felony in

calculating his guidelines range sentence, and the Government agreed in light

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2008

Charles R. Fulbruge III

Clerk
No. 07-50557

2

of the Supreme Court’s recent ruling in Lopez v. Gonzales, 127 S. Ct. 625 (2006).

In light of the Supreme Court’s holding, we agreed with the parties, vacated

Aragon’s sentence, and remanded the case to the district court. On remand,

Aragon’s revised guidelines range was calculated as twenty-one to twenty-seven

months of imprisonment, and the district court resentenced Aragon to sixty

months of imprisonment, to be followed by three years of supervised release. 

Aragon contends that his above-guidelines sentence was unreasonable

because the district court “ignored” the recalculated recommendation under the

Guidelines and because the district court gave too much weight to Aragon’s

criminal history when that same criminal history had already been factored into

the guidelines range. Because the district court here did not indicate that it was

upwardly departing or reference a Guidelines upward departure provision, we

treatthe sentence as a nonguidelines sentence.See UnitedStates v. Armendariz,

451 F.3d 352, 358 n. 5 (5th Cir.2006).

Aragon’s claim that the district court “ignored” the Guidelines on remand

is belied by the court’s detailed explanation of the above-guidelines sentence.

The district court adopted a four-page order explaining its decision to impose a

sentence above the guidelines range. In addition, the court expressly noted that

the Guidelines were advisory, and it used the range it had calculated as a frame

of reference. The court properly considered aspects of Aragon’s criminal history

that were undervalued or not reflected in his guidelines calculation, especially

his multiple arrests for various crimes and the pace of his criminal activity in

such a short time span during his unlawful presence in the United States. The

district court, citing 18 U.S.C. § 3553(a), found that a sixty-month term of

imprisonment was necessary, “considering the nature and circumstances ofthis

defendant’s conduct” and “his complete disregard for the laws of the United

States, to afford adequate deterrence to his criminal activity and protect the

public from this defendant’s further conduct.” In light of the district court’s

detailed justification for its above-guidelines sentence and Aragon’s criminal
No. 07-50557

3

history, we affirm the sixty-month sentence imposed as reasonable. See Gall v.

United States, 128 S. Ct. 586, 596-601 (2007).

In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Aragon 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, 492

F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No.

07-6202).

AFFIRMED.