* 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should not be published and is not precedent except under the limited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. 06-51173

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN PABLO MONTES-GARAY, also known as Juan Madera

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:06-CR-682-ALL

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Juan Pablo Montes-Garay appeals the sentence imposed for his illegal

reentry into the United States after having been removed following a felony

conviction in violation of 8 U.S.C. § 1326. Montes-Garay’s guidelines range of

imprisonment was seventy to eighty-seven months. The district court sentenced

him to seventy months in prison.

Montes-Garay argues on appeal that the district court erred by failing to

properly weigh and balance the sentencing factors set forth in 18 U.S.C.

United States Court of Appeals

Fifth Circuit

F I L E D

September 11, 2008

Charles R. Fulbruge III

Clerk
No. 06-51173

2

§ 3553(a). He states, for example, that he reentered the United States only to

find work and a seventy-month sentence was too harsh of a penalty for what

amounted to no more than an international trespass.

Our review is bifurcated. See Gall v. United States, 128 S. Ct. 586, 597

(2007). First, we must determine whether the district court committed any

significant procedural error. Id. Second, if the district court did not commit a

significant procedural error, we review the sentence for substantive

reasonableness. Id. We review sentencing decisions for abuse of discretion. Id.

We review the district court’s application of the Sentencing Guidelines de novo

and the court’s factual findings for clear error. United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

The record shows that the district court heard argument and received

information regarding the circumstances of Montes-Garay’s offense, including

his motive for reentering the United States. The district court was provided

with information that addressed several § 3553(a) factors, including the nature

and circumstances of Montes-Garay’s offense, his history and characteristics,

and the need for the sentence imposed to reflect the seriousness of the offense,

to provide just punishment, to give adequate deterrence from criminal conduct,

and to protect the public from future crimes by the defendant. Prior to imposing

the sentence, the district court gave Montes-Garay the opportunity to speak on

his behalf, and the court specifically addressed both his mitigation arguments

and his prior drug offense. See Rita v. United States, 127 S. Ct. 2456, 2469

(2007).

Montes-Garay has not demonstrated that the district court procedurally

or substantively erred and thus abused its discretion in imposing his sentence.

See Gall, 128 S. Ct. at 596-97. He has not rebutted the presumption that his

sentence, which falls within and at the bottom of a properly calculated

sentencing guidelines range, is reasonable. See UnitedStates v. Alonzo, 435F.3d

551, 554 (5th Cir. 2006). In light of the deferential standard set forth in Gall,
No. 06-51173

3

Montes-Garay has not established that the district court erred in imposing his

sentence. 128 S. Ct. at 597.

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

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.