USA vs. Alonso-De Lira, (5th Cir. 2006)

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United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

November 28, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-51387

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR ALONSO-DE LIRA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:05-CR-1307-ALL

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:* Salvador Alonso-De Lira (Alonso) appeals the sentence imposed following his guilty plea conviction of illegal re-entry, in violation of 8U.S.C. § 1326. Alonso contends that his sentence is unreasonable because the district court failed to properly weigh the sentencing factors set forth in 18U.S.C. § 3553(a) and imposed a term of imprisonment greater than necessary to meet § 3553(a)'s objectives. Alonso also argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that his imprisonment term exceeds * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the statutory maximum sentence allowed for the § 1326 offense charged in his indictment.

The record reflects that the district court considered factors set forth in § 3553(a) when it determined that a 70-month term of imprisonment was a fair and reasonable sentence in Alonso's case. See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Alonso's sentence fell at the lowest end of his properly calculated advisory guidelines range and is presumptively reasonable. See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).

Alonso has failed to rebut that presumption. See id.

Alonso's challenge to 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 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Alonso 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.), cert. denied, 126 S. Ct. 298 (2005). Alonso 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.

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