                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 21, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-21038
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GENARO SIERRA, also known as Genaro Sierra-Loviano,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:05-CR-211
                      --------------------

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Genaro Sierra appeals his guilty-plea conviction and

50-month sentence for illegal reentry following previous

deportation.   Sierra contends that the district court erred in

applying a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(vii) because the Government failed to prove that

he was convicted of a prior alien smuggling offense, and as such

a prior “aggravated felony” pursuant to 8 U.S.C. § 1326.

     Because Sierra raises this issue for the first time on

appeal, the standard of review is plain error.   See United States

     *
       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this opinion should not be published and is not precedent except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. 05-21038
                                  -2-

v. Olano, 507 U.S. 725, 731-32 (1993).      The district court

adopted the presentence report (PSR), which recommended a 16-

level enhancement to Sierra’s sentence on the ground that he had

previously been deported following a criminal conviction for

“aiding and abetting illegal alien transportation (an alien

smuggling offense).”     Sierra did not present any rebuttal

evidence or otherwise demonstrate that the information regarding

the existence of his prior conviction was unreliable.      See United

States v. Valdez, 453 F.3d 252, 262 (5th Cir.), cert. denied, 127

S. Ct. 456 (2006).    Moreover, at his rearraignment, Sierra agreed

to the Government’s statement that he had a 2000 conviction for

aiding and abetting illegal alien transportation, which has been

held to be an alien smuggling offense that qualifies for a 16-

level enhancement.     See United States v. Solis-Campozano, 312

F.3d 164, 167-68 (5th Cir. 2002).    Accordingly, the district

court did not plainly err in applying the 16-level enhancement

under § 2L1.2(b)(1)(A)(vii) to Sierra’s base offense level.

     Sierra challenges 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.    Sierra’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Sierra 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
                            No. 05-21038
                                 -3-

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).   Sierra 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.

     Sierra also contends that the district court committed two

errors in computing his criminal history score.   Specifically, he

asserts that he should not have been assessed one criminal

history point under U.S.S.G. § 4A1.1(e) for his 2005 driving

while intoxicated (DWI) conviction and two points under U.S.S.G.

§ 4A1.1(b) for his prior illegal alien transportation conviction.

Because Sierra did not object to the district court’s computation

of his criminal history score, review is for plain error.     See

United States v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991).

Assuming that the district court erred in the computation of

Sierra’s criminal history score, Sierra cannot show that his

substantial rights were affected because the guidelines range,

which Sierra was sentenced within, would remain the same.     See

Lopez, 923 F.2d at 51.

     Sierra also argues that his sentence should be vacated

because the district court based his sentence on a significant

factual error.    Specifically, he contends that the district court

mistakenly believed that his DWI arrest occurred after his
                            No. 05-21038
                                 -4-

daughter’s surgery, rather than before, and thus the court erred

in not believing that his motive for returning to the United

States was because of his daughter’s surgery.

     Because Sierra raises this issue for the first time on

appeal, review is for plain error.     See Olano, 507 U.S. at

731-32.   Whether Sierra committed the DWI offense prior to his

daughter’s surgery, rather than after, could have been resolved

upon proper objection at sentencing.    Thus, Sierra cannot

demonstrate plain error as to that factual question.      See Lopez,

923 F.2d at 50.   Additionally, contrary to Sierra’s assertion, it

was not improper for the district court to consider Sierra’s

criminal history when imposing his sentence.      See 18 U.S.C.

§ 3553(a).

     Sierra challenges the district court’s denial of his motion

for a downward departure.   However, this court does not have

jurisdiction to review this claim.     See United States v.

Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006).     Further,

Sierra cannot show that his substantial rights were affected by

the district court’s judgment ordering his sentence in the

instant case to run consecutively to an anticipated federal

revocation sentence.   The judgment from Sierra’s revocation

indicates that the district court ordered Sierra’s six-month

revocation sentence to run consecutively to the 50-month federal

sentence imposed in the instant case.      Thus, Sierra would still

be subject to the same sentence if this court were to vacate and
                           No. 05-21038
                                -5-

remand for resentencing.   Accordingly, the judgment of the

district court is AFFIRMED.
