* 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should not be published and is not precedent except under the limited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. 07-10805

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JULIO CESAR NICOLI-FUENTES

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:07-CR-21-ALL

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Julio Cesar Nicoli-Fuentes (Nicoli) pleaded guilty to illegal reentry after

deportation and was sentenced to 46 months of imprisonment and three years

of supervised release.

Nicoli argues that his sentence, which was within the recommended

guidelines range, was procedurally unreasonable because the district court did

not provide sufficient reasons for imposing his within-guidelines sentence and

United States Court of Appeals

Fifth Circuit

F I L E D

July 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-10805

2

was substantively unreasonable because the district court did not give proper

weight to his cultural assimilation and other mitigating factors.

An appellate court’s review of a sentence must start with the issue

whether the district court committed any “significant procedural error, such as

failing to calculate (or improperly calculating)the Guidelines range,treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).

If the sentencing decision is procedurally sound, the appellate court then

considers “the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id.

Because Nicoli did not challenge either the district court’s reasons for the

sentence imposed or the substantive reasonableness of his sentence in the

district court, these issues should be reviewed for plain error. See Unites States

v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008); United States v. Peltier,

505 F.3d 389, 391-92 (5th Cir. 2007), cert denied, ___ U.S. ___, 2008 WL 227315

(June 23, 2008) (No. 07-8978). Nicoli contends for the purpose of preserving the

issue for further review that Peltier was wrongly decided and that he should not

have been required to object specifically to the reasonableness of his sentence in

order to preserve the issue for review. However, this court is bound by its

decision in Peltier until it is changed by this court acting en banc or until the

Supreme Court clearly holds or teaches to the contrary. See United States v.

Ruff, 984 F.2d 635, 640 (5th Cir. 1993). 

Nicoli has not shown that the district court plainly erred by failing to

sufficiently state its reasons for sentencing. See Lopez-Velasquez, 526 F.3d at

806. The district court’s adoption of the presentence report and its statement

that it had considered Nicoli’s arguments for a downward departure and the

§ 3553(a) factors in determining his within-guidelines sentence constituted

sufficient reasons for imposing his sentence. See Rita v. UnitedStates, 127 S. Ct.
No. 07-10805

3

2456, 2468-69 (2007); United States v.Gomez-Herrera, 523 F.3d 554, 565 (5th Cir.

2008).

Nicoli also has not shown that the district court plainly erred in imposing

a sentence that was substantively unreasonable. Nicoli’s within-guidelines

sentence is entitled to a rebuttable presumption of reasonableness. See United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita, 127 S. Ct. at

2462. Although Nicoli contends that the district court did not take into account

certain mitigating factors, Nicoli made these arguments at sentencing, and the

district court stated that it had taken into consideration these arguments, as

well as the § 3553(a) factors, in sentencing him. Nicoli also argues that his

sentence did not meet the § 3553(a)(2)(A) requirement that it reflect the

seriousness of the offense, the need to promote respect for the law, and the need

to provide just punishment because the 16-level increase in his offense level

based on his prior convictions of armed robbery caused his sentence for an

“international trespass violation” to be more severe than the sentences for other

more serious crimes. However, a district court’s refusal to deviate from the

guidelines range based on the severity of a guidelines provision has not been

held to be unreasonable. See Kimbrough v. United States, 128 S. Ct. 558, 570-76

(2007). 

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

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 (1998). United States v.

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

(2008).

AFFIRMED.