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

                                                                   FILED
                                                                 December 4, 2008
                                No. 07-50906
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JUAN CARLOS BRAVO, also known as Juan Bravo-Hernandez

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-713-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Juan Carlos Bravo appeals his guilty plea conviction and sentence for
illegally reentering the United States after deportation, in violation of 8 U.S.C.
§ 1326.
      Bravo argues on appeal that his above-guidelines sentence of 36 months
of imprisonment was unreasonable because the district court improperly based
it on prior convictions that already had been taken into account by the
sentencing guidelines rather than on a balancing of the 18 U.S.C. § 3553(a)

      *
      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should not be published and is not precedent except under the limited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. 07-50906

sentencing factors. This issue was not raised below and is hence reviewed only
for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Although the district court imposed a sentence that was substantially higher
than the guidelines range, it properly considered the § 3553(a) factors and was
not prohibited from determining that, in the instant case, the guidelines did not
adequately reflect the § 3553(a) factors. See Gall v. United States, 128 S. Ct.
586, 596-97 (2007); United States v. Williams, 517 F. 3d 801, 809-11 & n.55 (5th
Cir. 2008). Accordingly, Bravo has failed to show that the district plainly erred
in sentencing him above the guideline range of imprisonment. See Gall, 128 S.
Ct. at 594, 596-97.
      While conceding that the argument is foreclosed by circuit precedent, see
United States v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 2007), cert. denied, 128
S. Ct. 2954 (2008), Bravo asserts that the district court erred in failing to provide
him with notice before imposing his above-guidelines sentence. The Supreme
Court has rejected this argument. United States v. Irizarry, 128 S. Ct. 2198,
2202-04 (2008).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Bravo also
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.           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).
      The judgment of the district court is AFFIRMED.




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