                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 27, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-11139
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALEJANDRO GAMEZ-MENDOZA, also known as
Mario Sanchez Quintero,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:05-CR-29-ALL
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Alejandro Gamez-Mendoza (Gamez) appeals his 41-month

sentence for illegal reentry after deportation, in violation of

8 U.S.C. §§ 1326 (a), (b)(2) and 6 U.S.C. §§ 202, 557.      The

district court determined, based on an offense level of 13 and a

criminal history category of IV, that Gamez’s Guideline

imprisonment range was 24-30 months.   The district court departed

upward 11 months pursuant to U.S.S.G. § 4A1.3, finding that

Gamez’s criminal history was substantially under-represented and


     *
       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this opinion should not be published and is not precedent except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. 05-11139
                                -2-

was more comparable to that of a defendant with a criminal

history category of VI.   Gamez argues that the departure was

unreasonable.

     This court reviews upward departures for reasonableness,

which entails review of the district court’s decision to depart

and the extent of the departure for abuse of discretion.     United

States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert.

denied, 126 S. Ct. 2954 (2006).   The district court here

determined that Gamez’s five prior immigration-related

adjudications and multiple deportations had not deterred him from

illegally entering the country and stated that the departure was

an attempt to deter future recidivism.    The sentencing transcript

reflects that the district court also considered the other

§ 3553(a) factors in reaching its decision.     The district court

did not abuse its discretion in departing, as the sentence

advanced the objectives set forth in § 3553(a)(2) and was

justified on the facts of the case.   See id.

     Gamez next argues that § 1326(b)’s treatment of prior

aggravated felony convictions as sentencing factors is

unconstitutional.   This constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Gamez contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), we have repeatedly rejected such arguments on the
                           No. 05-11139
                                -3-

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).   Gamez 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.

     Accordingly, the judgment of the district court is AFFIRMED.
