          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                 No. 07-50028                    F I L E D
                               Summary Calendar                  August 17, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

ERIK ALBERTO MENDEZ-LOPEZ

                                          Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 3:06-CR-1235-1


Before HIGGINBOTHAM, STEWART, AND OWEN, Circuit Judges.
PER CURIAM:*
      Erik Alberto Mendez-Lopez (Mendez) appeals his guilty-plea conviction
and sentence for illegal reentry following deportation. The Government has
moved for summary affirmance.        Alternatively, the Government seeks an
extension of time to file a brief.
      Mendez asserts that his 46-month guideline sentence violates United
States v. Booker, 543 U.S. 220 (2005), and is unreasonable. The presumption of
reasonableness afforded a sentence within a properly calculated advisory

      *
      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should not be published and is not precedent except under the limited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. 07-50028

guideline range is consistent with Booker. See Rita v. United States, 127 S. Ct.
2456, 2462 (2007).     The record reflects that the district court considered
Mendez’s arguments, the recommendation of the presentence report, and the
applicable guideline range. Because the district court exercised its discretion to
impose a sentence within a properly calculated guideline range, the sentence is
presumptively reasonable and we may infer that the district court considered all
the factors for a fair sentence set forth in the Guidelines. See Rita, 127 S. Ct. at
2462-70; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
      Mendez also argues that his sentence is unreasonable because the district
court failed to properly assess the factors set forth in § 3553(a). The district
court's sentence was imposed with sufficient consideration of the § 3553(a)
factors and is not unreasonable. See United States v. Nikonova, 480 F.3d 371,
376 (5th Cir. 2007).
      Mendez also argues, in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), that the 46-month term of imprisonment imposed in his case exceeds the
statutory maximum sentence allowed for the 8 U.S.C. § 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.
      Mendez’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. 2005). Mendez
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.


                                         2
                               No. 07-50028

     Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative request for an extension of time is DENIED as
unnecessary, and the decision of the district court is AFFIRMED.




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