                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 2, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-40754
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN ANTONIO RAMIREZ-JUAREZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-2570-ALL
                       --------------------

Before DAVIS, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Juan Antonio Ramirez-Juarez appeals his conviction and 41-

month sentence for attempted illegal reentry.   Ramirez-Juarez

argues that the sentence imposed by the district court should not

be afforded a presumption of reasonableness merely because it is

within the properly calculated guidelines range.   Ramirez-

Juarez’s argument is foreclosed by Rita v. United States, ___ S.

Ct. ___, 2006 WL 1772146 at *6-*11 (June 25, 2006).

     Ramirez-Juarez further contends that even if a presumption

of reasonableness applies to his sentence, the presumption is

     *
       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this opinion should not be published and is not precedent except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. 06-40754
                                -2-

overcome and the sentence is unreasonable when, as in his case,

the district court “is presented with nonfrivolous grounds for a

below-Guidelines sentence that the court simply passed over in

silence.”

     The district court heard the arguments that Ramirez-Juarez

had only one prior offense several years earlier and that he had

reentered the United States for family reasons.   The judge

commented that, although Ramirez-Juarez had only one prior

offense, it was a serious offense.   Based on that serious

history, the court stated that a sentence within the guideline

range “would be reasonable.”   Under Rita, the district court’s

statement of reasons was sufficient.   2006 WL 1772146 at * 13.

     Ramirez-Juarez also challenges the constitutionality of

8 U.S.C. § 1326(b).   His constitutional challenge is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Ramirez-Juarez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 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).   Ramirez-Juarez 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.
            No. 06-40754
                 -3-

AFFIRMED.
