                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 24, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-50003
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE RODOLFO ALVAREZ-GOMEZ,
also known as Jose Rudy Alvarez
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 5:05-CR-460
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Jose Rodolfo Alvarez-Gomez appeals his 70-month sentence and

his guilty-plea conviction for being in the United States

unlawfully after removal, in violation 8 U.S.C. § 1326.       Alvarez

argues that his sentence was unreasonable because the district

court misunderstood its authority to impose a sentence below the

advisory guidelines range.

     The record demonstrates that the district court was aware of

Alvarez’s family circumstances, that it knew that it had

discretion after Booker to depart when it thought reasonable, and

     *
       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this opinion should not be published and is not precedent except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. 06-50003
                                  -2-

that the district court did not find a reason to depart from the

advisory guidelines range.    Its statement that it would depart if

there was an “exceptional reason” was not error.    See United

States v. Smith, 440 F.3d 704, 706-07 (5th Cir. 2006) (explaining

that a court must have a reason to sentence outside of a

properly-calculated Guidelines range).

       Although Alvarez does not challenge the district court’s

calculation of his advisory guidelines sentencing range, he

further argues that the sentence imposed was unreasonable because

the district court failed to take into account the factors in 18

U.S.C. § 3553(a).    Under the discretionary sentencing scheme

established by United States v. Booker, 543 U.S. 220 (2005),

district courts retain the duty to consider the Sentencing

Guidelines along with the sentencing factors set forth in

§ 3553(a).    United States v. Mares, 402 F.3d 511, 518-19 (5th

Cir.), cert. denied, 126 S. Ct. 43 (2005).    Alvarez’s sentence is

within the advisory guidelines range and is presumptively

reasonable.    See United States v. Alonzo, 435 F.3d 551, 553-55

(5th Cir. 2006).    We infer in our reasonableness review that the

district court considered the § 3553(a) factors in imposing

sentence.    See Smith, 440 F.3d at 706-07; Alonzo, 435 F.3d at

554.

       Alvarez argues that, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), his prior aggravated felony conviction for

manufacture/delivery of cocaine, 1 to 4 grams, is a separate
                            No. 06-50003
                                 -3-

offense under § 1326 that should have been charged in his

indictment, submitted to the jury, and proven beyond a reasonable

doubt.   Because the 2001 felony conviction was not included in

his indictment, argues Alvarez, he was subject only to a two-year

maximum term of imprisonment as set forth in § 1326(a).

     Alvarez properly concedes that this argument is foreclosed

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

circuit precedent, but he raises it here to preserve it for

further review.    Although Alvarez contends that Almendarez-Torres

was incorrectly decided and that the Supreme Court might 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).

     AFFIRMED
