* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 24, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40773

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO MALDONADO-MALAGON,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:05-CR-1065-1

--------------------

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Armando Maldonado-Malagon was convicted of violating

8 U.S.C. § 1326 by being found in the United States without

permission, following deportation. He now appeals.

Maldonado-Malagon argues that his sentence is unreasonable

in light of United States v. Booker, 543 U.S. 220 (2005), because

the district court failed to consider his arguments for a belowguidelines sentence, failed to analyze on the record the

sentencing factors in 18 U.S.C. § 3553(a), and gave too much

weight to the advisory Sentencing Guidelines. The 46-month term
No. 06-40773

-2-

1 Maldonado-Malagon argues that his sentence should not be

afforded a presumption of reasonableness. He raises the issue to

preserve it for en banc or Supreme Court review in light of the

Supreme Court’s grant of certiorari in United States v. Rita, 127

S. Ct. 551 (2006). The Supreme Court decided Rita on June 21,

2007, and held that a “court of appeals may apply a presumption

of reasonableness to a district court sentence that reflects a

proper application of the Sentencing Guidelines.” Rita v. United

States, __ S. Ct. __, 2007 WL 1772146 at *6-11, quote at *6

(2007). In light of that decision, Maldonado-Malagon’s argument

is foreclosed. Maldonado-Malagon’s motion for this court to stay

his appeal pending a decision in Rita is denied as moot. 

of imprisonment imposed in Maldonado-Malagon’s case fell within

his properly calculated guidelines range and is entitled to a

presumption of reasonableness pursuant to United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).1 Maldonado-Malagon

has not demonstrated that the district court clearly erred in

exercising its broad sentencing discretion by imposing a sentence

that failed to “account for a factor that should have received

significant weight,” gave “significant weight to an irrelevant or

improper factor,” or represented “a clear error of judgment in

balancing the sentencing factors.” United States v. Nikonova,

480 F.3d 371, 376 (5th Cir. 2007). He has not rebutted the

presumption of reasonableness. Id.

Maldonado-Malagon also argues, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the 46-month term of

imprisonment imposed in his case exceeds the statutory maximum

sentence allowed for the § 1326(a) offense charged in his

indictment. He challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as
No. 06-40773

-3-

sentencing factors rather than elements of the offense that must

be found by a jury. Maldonado-Malagon’s constitutional challenge

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998). Although he contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, we have

repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding. See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). MaldonadoMalagon properly concedes that his argument is foreclosed in

light of Almendarez-Torres and circuit precedent, but he raises

it here to preserve it for further review. 

AFFIRMED; MOTION DENIED.