                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                          June 14, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 06-41160
                              Summary Calendar


      UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

           versus

      JOSE BERNARDO RODRIGUEZ-RODRIGUEZ,

                                                 Defendant-Appellant.



           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 5:05-CR-2032



Before GARWOOD, CLEMENT and PRADO, Circuit Judges.

PER CURIAM:*

      Jose Bernardo Rodriguez-Rodriguez was convicted of one count

of having been found in the United States following deportation and

sentenced to serve 57 months in prison. Rodriguez-Rodriguez argues

that his bottom of the guideline range sentence (imposed July 2006)

is   unreasonable    because    he   requested     a   sentence    below    the

guidelines based on the 18 U.S.C. § 3553 factors and that the

district   court    imposed    the   sentence    without   considering      the



      *
      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opinion should not be published and is not precedent except under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.
mitigating factor or the nature and circumstances of the offense.

The record shows that Rodriguez-Rodriguez’s factual assertion that

the district court did not consider the mitigating circumstance

presented    at   sentencing   is   factually   incorrect.      Rodriguez-

Rodriguez has not shown that the sentence imposed by the district

court is unreasonable.     See United States v. Mares, 402 F.3d 511,

518-19 (5th Cir. 2005).

       Rodriguez-Rodriguez challenges the constitutionality of 8

U.S.C. § 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.              Rodriguez-Rodriguez’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 Alemdarez-Torres is light of

Apprendi v. New Jersey, 530 U.S. 460 (2000), we have repeatedly

rejected such arguments on the basis that Alemdarez-Torres remains

binding.    See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.   2005).     Rodriguez-Rodriguez    properly    concedes    that   his

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but he raises it here to preserve it for future review.

       The judgment of the district court is

                                AFFIRMED.




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