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. 06-50240
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODIMIRO MURILLO-TORRES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:05-CR-186-ALL
--------------------
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Rodimiro Murillo-Torres appeals his guilty-plea conviction
of, and sentence for, violating 8 U.S.C. § 1326 by being found in
the United States without permission after deportation. He
argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the 41-month term of imprisonment imposed in his case
exceeds the statutory maximum sentence allowed for the § 1326(a)
offense charged in his indictment. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
*
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this opinion should not be published and is not precedent except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. 06-50240
-2-
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Murillo-Torres’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
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). Murillo-
Torres 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.
Murillo-Torres also contends that the sentence imposed in
his case is unreasonable because the district court failed to
properly weigh the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and imposed a term of imprisonment greater than
necessary to meet § 3553(a)’s objectives. After considering the
§ 3553(a) factors, the district court sentenced Murillo-Torres to
a 41-month term of imprisonment. Murillo-Torres’s sentence fell
at the lowest end of his properly calculated advisory guidelines
range and is presumptively reasonable. See United States v.
Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Murillo-Torres has
failed to rebut that presumption. See id.
AFFIRMED.