                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 2, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-50253
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

ADAN MYERS-PACHECO, also known as Adan Myers,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:05-CR-445-ALL
                       --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Adan Myers-Pacheco appeals from his guilty-plea conviction

for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2).

Myers-Pacheco argues that the district court imposed an

unreasonable sentence because it failed to consider the impact of

his belief that he was a United States citizen on the relevant

§ 3553(a) sentencing factors.   See 18 U.S.C. § 3553(a)(1)-(5).

Although the court did not identify each factor under § 3553(a),

the court considered and rejected the impact of Myers-Pacheco’s

beliefs about his citizenship on the sentencing factors.       In


     *
       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this opinion should not be published and is not precedent except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. 06-50253
                                 -2-

fact, the district court’s questioning concerning the

contradiction between Myers-Pacheco’s belief and his action in

obtaining a resident alien card reflected the court’s skepticism

regarding Myers-Pacheco’s belief that he was a citizen.

Accordingly, Myers-Pacheco has not overcome the presumption of

reasonableness.    See United States v. Alonzo, 435 F.3d 551,

553-54 (5th Cir. 2006).

     Myers-Pacheco also argues, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the 46-month term of

imprisonment 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.

     Myers-Pacheco’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).     Myers-

Pacheco 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.
