                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                       April 25, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                              No. 05-40949




                     UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                  versus

                      MARTIN PALACIOS-MUNGIA,

                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. G-04-CR-21
                      --------------------

Before KING, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Martin Palacios-Mungia, the defendant, pled guilty to illegal

reentry after previously having been convicted of transporting an

illegal alien and deported. The district court chose to sentence

Palacios-Mungia   under    the   Sentencing   Guidelines,    selecting       a

sentence of fifty-seven months from a recommended range of between

fifty-seven and seventy-one months.

     Palacios-Mungia objects that the district court committed

error by declaring that despite the decision in United States v.

     *
       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that this opinion should not be published and is not precedent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. 05-40949
                                       -2-

Booker, 125 S. Ct. 738 (2005), it intended to “be bound by the

guidelines, even though they are advisory now under prevailing

Supreme Court authority.” Palacios-Mungia argues that this is an

impermissible return to the pre-Booker sentencing regime.

       The Booker decision made clear that “[i]f the Guidelines as

currently written could be read as merely advisory provisions that

recommended, rather than required, the selection of particular

sentences in response to differing sets of facts, their use would

not implicate the Sixth Amendment. We have never doubted the

authority of a judge to exercise broad discretion in imposing a

sentence within a statutory range.” 125 S. Ct. at 750. We have

noted that a district judge remains under an obligation post-Booker

to    “consider”   the   sentencing    guidelines,      and   that   “[i]f   the

sentencing judge exercises her discretion to impose a sentence

within a properly calculated Guideline range, in our reasonableness

review we will infer that the judge has considered all the factors

for   a   fair   sentence   set    forth   in   the   Guidelines.    Given   the

deference due the sentencing judge’s discretion under the Booker /

Fanfan regime, it will be rare for a reviewing court to say such a

sentence is ‘unreasonable.’” United States v. Mares, 402 F.3d 511,

519 (5th Cir. 2005).

       Here, the district court has stated its general intention to

adhere to the advisory sentences recommended by the Guidelines. The

district court has also recognized its willingness to sentence

outside the Guidelines in “rare circumstances that require the
                             No. 05-40949
                                  -3-

Court to temper seemingly Draconian penalties with a reasonable

measure of mercy.” Booker requires only that the Guidelines must

not be mandatorily imposed on the district court. It does not bar

a district court from voluntarily exercising its discretion to

generally sentence within those Guidelines.         The district court

here did not err in sentencing Palacios-Mungia according to the

recommendations of the Guidelines.

     The defendant acknowledges that his objection to the facial

constitutionality   of   8   U.S.C.   §   1326(b)   is   foreclosed   by

Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998).

     For the foregoing reasons, Palacio-Mungia’s conviction and

sentence are AFFIRMED.
