* 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should not be published and is not precedent except under the limited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. 06-41051

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CRECENCIO PEREZ-JIMENEZ, also known as Cresencio Perez-Jimenez, Jr

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:05-CR-1366-ALL

Before KING, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

CrecencioPerez Jimenez is appealing his conviction and sentence imposed

following his guilty plea to being found unlawfully present in the United States

following deportation. Perez was sentenced to a term of imprisonment of 46

months. 

Perez argues that this court’s application of the presumption of

reasonableness to a guideline sentence reinstates the mandatory guidelines

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2007

Charles R. Fulbruge III

Clerk
No. 06-41051

2

regime set aside in United States v. Booker, 543 U.S. 220 (2005). This argument

is foreclosed by the Supreme Court’s ruling in Rita v. United States, 127 S. Ct.

2456, 2463-68 (2007). 

Perez further argues that his sentence is unreasonable because the district

court did not specifically address his arguments for a variance below the

sentencing guidelines range and, thus, failed to give proper consideration to the

relevant 18 U.S.C. § 3553(a) factors. Perez did not make this argument in the

district court. Thus, review is for plain error. United States v. Mares, 402 F.3d

511, 520 (5th Cir. 2005). 

Under the discretionary sentencing system established by Booker, if the

district court imposes a sentence within a properly calculated guidelines range,

this court will give the sentence “great deference” and “will infer that the judge

has considered all the factors for a fair sentence set forth in the Guidelines.” Id.

at 519, 520. In such cases, “it will be rare for a reviewing court to say such a

sentence is ‘unreasonable’” and “little explanation is required.” Id. at 519.

Rita held that the district court’s reasons therein were sufficient where it was

clear that the district court listened to the arguments and understood the

defendant’s circumstances. 127 S. Ct. at 2469. The record reflects that the

district court was familiar with the presentence report (PSR) and that the

district court gave Perez and his counsel an ample opportunity to present their

arguments in favor of the variance. The district court gave strong consideration

to Perez’s medical condition and recommended that it be taken into account in

his prison assignment. 

Insofar as the district court did not specifically mention Perez’s argument

concerning his family ties in the United States, such factor was not entitled to

significant weight, see U.S.S.G. § 5H1.6 (p.s.). Regarding the district court’s

failure to address his argument concerning his criminal history, Perez has not

shown that the PSR overstated the seriousness of his prior criminal history

merely because it listed prior convictions that were ten and twelve years old.
No. 06-41051

3

Thus, Perez has not shown that the district court’s failure to expressly address

all of his arguments for a variance affected his substantial rights. Mares, 402

F.3d at 520. 

Insofar as Perez asserts that his sentence is unreasonable, he has failed

to demonstrate that the district court erred in exercising its broad sentencing

discretion by imposing a sentence that failed to account for a factor that should

have received significant weight, by giving significant weight to an irrelevant or

improper factor, or by representing a clear error of judgment in balancing the

sentencing factors. See United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.

2007), petition for cert. filed, (May 21, 2007) (No. 06-11834). Thus, Perez has not

rebutted the presumption that the sentence imposed in his case was reasonable.

See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). 

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

the constitutionality of 8 U.S.C. § 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 court has held that the issue is “fully

foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d

624, 625 (5th Cir. 2007).

Perez’s conviction and sentence are AFFIRMED.