                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 2, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-50949
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WILFREDO LIZAMA-DIAZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 2:04-CR-979-ALL
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Wilfredo Lizama-Diaz pleaded guilty to illegal reentry after

deportation and was sentenced to 46 months of imprisonment, three

years of supervised release, and a $100 special assessment.

Lizama-Diaz moves for appointment of new counsel based on his

current court-appointed attorney’s decision not to file a reply

brief in this case.   The motion is DENIED.

     Lizama-Diaz argues that his sentence is unreasonable and is

greater than necessary to meet the sentencing goals under 18


     *
       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this opinion should not be published and is not precedent except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. 05-50949
                                -2-

U.S.C. § 3553(a) because the court did not consider his

rehabilitation.   He does not challenge the district court’s

calculation of his guidelines sentencing range.

     A sentence, such as Lizama-Diaz’s, “within a properly

calculated Guideline range is presumptively reasonable.”      United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).      In the

district court’s written Statement of Reasons it noted that it

considered, in part, “the history and characteristics of the

defendant,” which would have encompassed any rehabilitation on

Lizama-Diaz’s part.   Lizama-Diaz has failed to demonstrate that

his properly calculated guidelines sentence was unreasonable.

See id.; United States v. Mares, 402 F.3d 511, 519 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005).

     Lizama-Diaz also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   His constitutional challenge is foreclosed by

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

Although Lizama-Diaz 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).

Lizama-Diaz properly concedes that his argument is foreclosed in
                          No. 05-50949
                               -3-

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

it here to preserve it for further review.

     AFFIRMED; MOTION DENIED.
