                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 31, 2006

                                                         Charles R. Fulbruge III
                           No. 06-50211                          Clerk
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BERNARDINO MENDOZA-GALVAN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 3:05-CR-1643
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Bernardino Mendoza-Galvan (Mendoza) appeals his guilty-plea

conviction and the 41-month sentence imposed for illegally

reentering the United States after removal.   Mendoza argues that

his sentence is unreasonable and that it exceeds the statutory

maximum for the offense charged in his indictment.

     A sentence, such as Mendoza’s, “within a properly

calculated Guideline range is presumptively reasonable.”

United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

Mendoza argues that the district court failed to consider 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this opinion should not be published and is not precedent except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. 06-50211
                                -2-

mitigating evidence he presented and misweighed the guidelines

range.   However, Mendoza has failed to demonstrate that his

properly calculated guidelines sentence was unreasonable.      See

Alonzo, 435 F.3d at 554; United States v. Mares, 402 F.3d 511,

519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

     Mendoza also 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 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.

     Mendoza’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).   Mendoza

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.
