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

                                                FILED
                                                                 March 20, 2009
                                No. 08-50091
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ALEJANDRO MENDOZA-RICO

                                            Defendant-Appellant

                 Appeals from the United States District Court
                       for the Western District of Texas
                         USDC No. 2:07-CR-505-ALL

Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Alejandro Mendoza-Rico (Mendoza) appeals the sentence imposed
following his guilty plea conviction for illegal reentry following deportation. He
argues that the 36-month sentence imposed by the district court was
unreasonable under 18 U.S.C. § 3553(a). Mendoza contends that the sentence
imposed is greater than necessary to deter further criminal conduct or to protect
the public from additional crimes and that there is no evidence that a 36-month
sentence was necessary to provide him with educational or vocational training,
medical care, or other correctional treatment. He asserts for the first time on


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50091

appeal that his motive for returning to the United States was to seek
employment to assist his family and that this mitigates the seriousness of his
offense.
      The district court determined that Mendoza’s extensive criminal history,
which included 26 convictions, was not adequately accounted for under the
advisory guidelines range, which awarded him criminal history points for just
three of those prior convictions. The district court based its decision on all of the
relevant factors and noted that the advisory guidelines range was not adequate
considering the amount of uncounted criminal history, the history and
characteristics of the defendant, the need to provide just punishment, and the
need to deter future criminal conduct and to protect the public. Mendoza has not
shown that the sentence imposed was unreasonable. See Gall v. United States,
128 S. Ct. 586, 596-97 (2007); United States v. Smith, 440 F.3d 704, 709-10 (5th
Cir. 2006).
      To the extent that Mendoza asserts for the first time on appeal that
U.S.S.G. § 2L1.2 is not empirically supported as required by Kimbrough v.
United States, 128 S. Ct. 558, 570 (2007), for a presumption of reasonableness
to attach to a within guidelines sentence, his argument is reviewable for plain
error and is misplaced as the district court imposed a nonguidelines sentence.
See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008), cert.
denied, 129 S. Ct. 328 (2008).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Mendoza
challenges the constitutionality of 8 U.S.C. § 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.         This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.

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