                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-51284
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

VICTOR MANUEL GONZALEZ-RUIZ, also known as Manuel Gonzalez,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:05-CR-381-ALL
                       --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Victor Manuel Gonzalez-Ruiz (Gonzalez) appeals his guilty-

plea conviction and sentence for being unlawfully present in the

United States after deportation without consent of the Attorney

General or the Secretary of Homeland Security.   He argues that

the district court erred in enhancing his sentence based on his

Texas prior conviction for kidnaping under U.S.S.G. § 2L1.2.

Because he did not raise this issue in the district court, his

claim is reviewed for plain error.    See United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).

     *
       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this opinion should not be published and is not precedent except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. 05-51284
                                -2-

      Gonzalez has not shown that the district court’s increase in

his offense level based on his prior Texas kidnaping conviction

pursuant to § 2L1.2 was a “clear or obvious” error.   See United

States v. Izaguirre-Flores, 405 F.3d 270, 273-75 (5th Cir.),

cert. denied, 126 S. Ct. 253 (2005); Calverley, 37 F.3d at 162-

64.

      Gonzalez argues that his sentence at the bottom of the

applicable advisory sentencing guideline range is unreasonable

under 18 U.S.C. § 3553(a) because it is excessive in relation to

the seriousness of his offense.   Gonzalez’s disagreement with the

Sentencing Commission’s assessment of the seriousness of his

offense does not establish that his sentence was unreasonable.

      Gonzalez 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.

      Gonzalez’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
                           No. 05-51284
                                -3-

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).   Gonzalez

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.

     AFFIRMED.
