                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        May 31, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 06-40992
                             Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

GILBERTO HERNANDEZ-AZUA,

                                          Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           (5:05-CR-1374)
                        --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Gilberto Hernandez-Azua appeals from his

guilty plea conviction and 46-month sentence for being an alien

found    unlawfully   in   the   United   States   after   deportation     and

following a conviction for an aggravated felony, in violation of

8 U.S.C. § 1326.       Hernandez-Azua argues that his sentence “is

contrary to [United States v. Booker, 543 U.S. 220 (2005)] and

unreasonable as a matter of law.”         He contends that this court’s

post-Booker decisions have effectively reinstated the mandatory

guideline scheme condemned by Booker and further argues that, post-

     *
       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this opinion should not be published and is not precedent except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.
Booker, a district court in imposing sentence should be allowed to

disagree with policy decisions of the Sentencing Commission.

       Post-Booker, appellate courts are to review sentences for

reasonableness.      Booker, 543 U.S. at 261-63; United States v.

Mares, 402 F.3d 511, 518 (5th Cir. 2005).       “If the sentencing judge

exercises her discretion to impose a sentence within a properly

calculated Guideline range, in our reasonableness review we will

infer that the judge has considered all the factors for a fair

sentence set forth in the Guidelines.”          Mares, 402 F.3d at 519.

“Given the deference due the sentencing judge’s discretion under

[Booker], it will be rare for a reviewing court to say such a

sentence is ‘unreasonable.’”         Id.   Hernandez-Azua identifies no

error in the guidelines calculations, and he was sentenced at the

low end of the applicable guidelines range.                 We conclude that

Hernandez-Azua’s sentence was reasonable.            See id. at 519-20.

       Hernandez-Azua’s      constitutional     and        non-constitutional

challenges to § 1326(b) are foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).         Although Hernandez-Azua

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 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).

Hernandez-Azua properly concedes that his arguments are foreclosed

                                      2
in light of Almendarez-Torres and circuit precedent, but he raises

them here to preserve them for further review.

     The judgment of the district court is

AFFIRMED.




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