IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                               No. 06-41018                           F I L E D
                             Summary Calendar
                                                                    September 27, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

v.

JOSE FRANKLIN PENA-HERNANDEZ,

                                          Defendant-Appellant.



                Appeal from the United States District Court
                     for the Southern District of Texas
                            No.5:06-CR-291-ALL




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


      Jose Pena-Hernandez appeals his guilty-plea conviction of and sentence
for illegally reentering the United States in violation of 8 U.S.C. § 1326. He
raises two arguments, both of which he concedes are foreclosed. First, he con-


      *
      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should not be published and is not precedent except under the limited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.
                                   No. 06-41018

tends that the presumption of reasonableness afforded by this court to sentences
within the sentencing guideline range is unconstitutional under United States
v. Booker, 

(2005). This argument is confuted by Rita v. United
States, 

, 2462 (2007), which holds 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.”
      In light of Apprendi v. New Jersey, 

(2000), Pena-Hernandez
challenges the constitutionality of § 1326(b)’s treatment of prior felony and ag-
gravated felony convictions as sentencing factors rather than elements of the of-
fense that must be found by a jury. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 

, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). Ac-
cord United States v. Galvan-Lozano, No. 06-41297, 

, at *1-*2 (5th Cir. Sept. 12, 2007) (per curiam).
      AFFIRMED.




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