                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 28, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 06-50240
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RODIMIRO MURILLO-TORRES,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 2:05-CR-186-ALL
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Rodimiro Murillo-Torres 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.        He

argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),

that the 41-month term of imprisonment imposed in his case

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



     *
       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this opinion should not be published and is not precedent except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. 06-50240
                                -2-

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

     Murillo-Torres’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).      Murillo-

Torres 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.

     Murillo-Torres also contends that the sentence imposed in

his case is unreasonable because 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 Murillo-Torres to

a 41-month term of imprisonment.    Murillo-Torres’s sentence fell

at the lowest end of his properly calculated advisory guidelines

range and is presumptively reasonable.    See United States v.

Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).     Murillo-Torres has

failed to rebut that presumption.    See id.

     AFFIRMED.
