                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 7, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-51428
                           Summary Calendar


UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

PEDRO RIVAS-GONZALEZ

                       Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 2:04-CR-724-ALL
                       --------------------

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.

PER CURIAM:*

     Pedro Rivas-Gonzalez appeals the sentence imposed following

his guilty-plea conviction for illegal reentry into the United

States after deportation in violation of 8 U.S.C. § 1326.

He argues that the district court erred in enhancing his offense

level by 16 levels pursuant to U.S.S.G. § 2L1.2 based on his

prior Oklahoma conviction for indecent, lewd acts with a minor.

Rivas-Gonzalez also argues that the sentence may not be upheld as

a reasonable sentence under 18 U.S.C. § 3553(a).   Because we

conclude that the alternative 41-month sentence imposed by the

     *
       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this opinion should not be published and is not precedent except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. 05-51428
                                -2-

district court was reasonable under 18 U.S.C. § 3553(a), we need

not determine whether Rivas-Gonzalez’s prior Oklahoma conviction

for indecent, lewd acts with a minor meets the common-sense

definition of sexual abuse of a minor within the meaning of the

comments to § 2L1.2.   See § 2L1.2, comment. (n.1(B)(iii)).

     The district court, in the alternative, determined that even

without the 16-level enhancement, it would have imposed the same

sentence based on the factors set forth in § 3553(a), including

Rivas-Gonzalez’s history and characteristics; Rivas-Gonzalez’s

conduct underlying his prior Oklahoma conviction; the fact that

Rivas-Gonzalez’s criminal history was underrepresented; Rivas-

Gonzalez’s seven prior unscored illegal reentries into the United

States; and Rivas-Gonzalez’s violations of the terms of his prior

Oklahoma sentence of probation.   The district court considered

the factors in § 3553(a), as well as Rivas-Gonzalez’s personal

history as a victim of physical abuse.    Because the district

court provided detailed, fact-specific reasons for its decision

to impose the 41-month sentence based on the factors set forth in

§ 3553(a) and because the district court did not consider any

improper factors, Rivas-Gonzalez has not shown that the

alternative sentence imposed by the district court was

unreasonable.   See United States v. Smith, 440 F.3d 704, 709-10

(5th Cir. 2006); see also United States v. Duhon, 440 F.3d 711,

715-21 (5th Cir. 2006), petition for cert. filed, ___ U.S.L.W.

___ (U.S. May 18, 2006)(No. 05-11144).
                           No. 05-51428
                                -3-

     Rivas-Gonzalez also argues that his sentence exceeds the

statutory maximum sentence for the charged 8 U.S.C. § 1326(a)

offense in view of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Rivas-Gonzalez’s argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).   Although Rivas-Gonzalez

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).   Rivas-Gonzalez 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.
