                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 31, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-50046
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS ORTEGA-GAMEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:05-CR-1492-ALL
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Jose Luis Ortega-Gamez (Ortega) appeals the 41-month

sentence imposed following his guilty-plea conviction for illegal

re-entry, in violation of 8 U.S.C. § 1326.   He argues that,

although his sentence was at the bottom of the guidelines range,

it 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.   He also argues, in light of Apprendi v.

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

     *
       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this opinion should not be published and is not precedent except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. 06-50046
                                -2-

statutory maximum sentence allowed for the § 1326 offense charged

in his indictment.

     The record reflects that the district court considered

factors set forth in § 3553(a) when it determined that a 41-month

term of imprisonment was a fair and reasonable sentence in

Ortega’s case.   See United States v. Mares, 402 F.3d 511, 518-19

(5th Cir. 2005); see also United States v. Smith, 440 F.3d 704,

707 (5th Cir. 2006).   Ortega has not shown that this sentence was

unreasonable or that this court should not defer to the district

court’s determinations at sentencing.     See Mares, 402 F.3d

at 519.

     Ortega’s challenge to 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 is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).   Although Ortega 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).     Ortega 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.
