United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-51363
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LASARO SANTOYO-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(2:05-CR-59-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Lasaro Santoyo-Garcia pleaded guilty to a
single-count indictment charging illegal reentry into the United
States after deportation in violation of 8 U.S.C. § 1326. He was
sentenced to 41 months of imprisonment and three years of
supervised release. He now appeals his sentence, which was imposed
after the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), asserting that it was unreasonable, because it was
greater than necessary to meet the goals of 18 U.S.C. § 3553(a).
*
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this opinion should not be published and is not precedent except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.
The record shows that the district court fulfilled its duty to
consider all of the § 3553 factors and that the court sentenced
Santoyo-Garcia to 41 months of imprisonment, the lowest end of the
sentencing guidelines range. See United States v. Mares, 402 F.3d
511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). This
sentence is within the properly calculated advisory guidelines
range and is presumptively reasonable. United States v. Alonzo,
435 F.3d 551, 554-55 (5th Cir. 2006). There is no indication that
the sentence imposed was unreasonable. See Mares, 402 F.3d at 519.
Santoyo-Garcia also asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Santoyo-Garcia’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Santoyo-Garcia 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 because Almendarez-Torres remains binding
Supreme Court precedent. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Santoyo-Garcia properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, raising it here
only to preserve it for further review.
AFFIRMED.
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