          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                     FILED
                                                                  October 24, 2007
                                 No. 06-41516
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

ARTEMIO ANDRADE-REAL

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 5:06-CR-776-ALL


Before WIENER, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
      Artemio Andrade-Real (Andrade) appeals his conviction and sentence
following his guilty plea to illegal reentry into this country following deportation,
in violation of 8 U.S.C. § 1326. Andrade asserts that his 41-month guidelines
sentence violates United States v. Booker, 543 U.S. 220 (2005), and is
unreasonable.     Andrade argues that this court’s post-Booker sentencing
jurisprudence effectively reinstates the mandatory nature of the Guidelines by



      *
      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should not be published and is not precedent except under the limited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. 06-41516

bestowing a presumption of reasonableness on sentences that fall within the
advisory sentencing guideline range.
      The 41-month term of imprisonment imposed in Andrade’s case fell within
his properly-calculated guidelines range and is entitled to a presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Andrade correctly concedes that his argument that the presumption of
reasonableness used by this court returns the Guidelines to their formerly
unconstitutional, mandatory status is foreclosed. See Rita v. United States, 127
S. Ct. 2456, 2462-68 (2007). Because the district court exercised its discretion
to impose a sentence within a properly calculated guidelines range, the sentence
is presumptively reasonable, and we may infer that the district court considered
all the factors for a fair sentence set forth in the Guidelines. See Rita, 127 S. Ct.
at 2462-70; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
      Andrade has not rebutted the presumption that his sentence is
unreasonable. Nothing in the record indicates that the district court failed to
afford appropriate weight to relevant factors, considered any irrelevant factors,
or balanced the factors unreasonably. See United States v. Nikonova, 480 F.3d
371, 376 (5th Cir. 2007), petition for cert. filed (May 21, 2007) (No. 06-11834).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Andrade
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. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
      The judgment of the district court is AFFIRMED.




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