UNITED STATES of America, Plaintiff-Appellee, v. Porfirio TORRES-RIVAS, Defendant-Appellant, 226 F. App'x 421

PER CURIAM: Appealing the Judgment in a Criminal Case, Porfirio Torres-Rivas (Torres) preserves for further review his contention that his sentence is unreasonable because this court’s post-Booker rulings have ef fectively reinstated the mandatory Sentencing Guideline regime condemned in Booker. Torres concedes that his argument is foreclosed by United States v. Mares, 402 F.3d 511 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005), and its progeny, which have outlined this court’s methodology for reviewing sentences for reasonableness.

Torres also preserves for further review his contention that his sentence is unreasonable because the illegal reentry guideline is unduly severe. Torres concedes that this argument is foreclosed by United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir.2006), which held that “Booker does not give sentencing courts the discretion to impose a non-Guideline sentence based on the courts’ disagreement with Congressional and Sentencing Commission policy.” Finally, Torres raises arguments that are foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. The Government’s motion for

summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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 v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005).