                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-51133
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HECTOR ALVAREZ-CEDILLO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:05-CR-356-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Hector Alvarez-Cedillo appeals his guilty-plea conviction

of, and sentence for, violating 8 U.S.C. § 1326 by being found in

the United States without permission after deportation.

Alvarez-Cedillo contends that the district court failed to

properly weigh the sentencing factors set forth in 18 U.S.C.

§ 3553(a) and imposed a term of imprisonment greater than

necessary to meet § 3553(a)’s objectives.    After considering the

§ 3553(a) factors, the district court sentenced Alvarez-Cedillo

to a 52-month term of imprisonment, which was within the properly

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this opinion should not be published and is not precedent except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

calculated advisory range under the Sentencing Guidelines.

Alvarez-Cedillo’s sentence is presumptively reasonable, and he

has failed to rebut that presumption.       United States v. Alonzo,

435 F.3d 551, 554-55 (5th Cir. 2006).       Alvarez-Cedillo preserves

for further review his argument that the presumption of

reasonableness is contrary to United States v. Booker, 543 U.S.

220 (2005).

     Alvarez-Cedillo also argues, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), that his sentence exceeds the

statutory maximum sentence allowed for the § 1326(a) offense

charged in his indictment.    He 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.

     Alvarez-Cedillo’s constitutional challenge is foreclosed by

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

Although he 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).       Alvarez-

Cedillo 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.
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AFFIRMED.
