United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-51528
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AURELIO ARIAS-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-772-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Aurelio Arias-Ramirez (Arias) appeals the 46-month sentence
imposed following his plea of guilty to illegally reentering the
United States after deportation. He contends that his sentence
was unreasonable in light of the factors set forth in 18 U.S.C.
§ 3553(a).
Arias’s sentence was within a properly calculated advisory
guideline range and is presumed reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Giving “great
deference” to such a sentence, and recognizing that 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this opinion should not be published and is not precedent except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.
No. 05-51528
-2-
sentencing court considered all the factors for a fair sentence
under § 3553(a), we conclude that Arias has failed to rebut the
presumption that his sentence was reasonable. See Alonzo, 435
F.3d at 554.
Arias challenges 18 U.S.C. § 1326(b)’s treatment of prior
felony and aggravated felony convictions as sentencing factors
rather than elements of the offense in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Arias’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Arias 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 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). Arias properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
AFFIRMED.