                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 7, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-50262
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JORGE ALBERTO HERNANDEZ-PONCE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 3:05-CR-2224
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Jorge Alberto Hernandez-Ponce (Hernandez) appeals his

conviction and the 46-month sentence imposed following his plea

of guilty to illegally reentering the United States after

deportation.   He contends that his sentence was unreasonable in

light of the factors set forth in 18 U.S.C. § 3553(a).

     Hernandez contends that the district court imposed an

unreasonable sentence in that it refused to consider the

sentencing disparity between his case and those of defendants in

districts which offer “fast-track” programs.   This court recently

     *
       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this opinion should not be published and is not precedent except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. 06-50262
                                  -2-

rejected a nearly identical argument, holding “[t]he refusal to

factor in, when sentencing a defendant, the sentencing disparity

caused by early disposition programs does not render a sentence

unreasonable.”     United States v. Aguirre-Villa, __ F.3d __, 2006

WL 2349222 at *2 (5th Cir. Aug. 15, 2006)(No. 05-50978).

     Hernandez’s sentence was within a properly calculated

advisory guideline range and is presumed reasonable.     See United

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

sentence is given “great deference,” and we infer that the

sentencing court considered all the factors for a fair sentence

under § 3553(a).     See United States v. Mares, 402 F.3d 511,

519-20 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).     We

conclude that Hernandez has failed to rebut the presumption that

his sentence, which was at the bottom of the applicable range

under the Sentencing Guidelines, was reasonable.     See Alonzo, 435

F.3d at 554-55.

     Hernandez also 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 § 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.
                           No. 06-50262
                                -3-

     Hernandez’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).   Hernandez

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.
