United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-11139
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO GAMEZ-MENDOZA, also known as
Mario Sanchez Quintero,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-29-ALL
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Alejandro Gamez-Mendoza (Gamez) appeals his 41-month
sentence for illegal reentry after deportation, in violation of
8 U.S.C. §§ 1326 (a), (b)(2) and 6 U.S.C. §§ 202, 557. The
district court determined, based on an offense level of 13 and a
criminal history category of IV, that Gamez’s Guideline
imprisonment range was 24-30 months. The district court departed
upward 11 months pursuant to U.S.S.G. § 4A1.3, finding that
Gamez’s criminal history was substantially under-represented 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this opinion should not be published and is not precedent except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. 05-11139
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was more comparable to that of a defendant with a criminal
history category of VI. Gamez argues that the departure was
unreasonable.
This court reviews upward departures for reasonableness,
which entails review of the district court’s decision to depart
and the extent of the departure for abuse of discretion. United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert.
denied, 126 S. Ct. 2954 (2006). The district court here
determined that Gamez’s five prior immigration-related
adjudications and multiple deportations had not deterred him from
illegally entering the country and stated that the departure was
an attempt to deter future recidivism. The sentencing transcript
reflects that the district court also considered the other
§ 3553(a) factors in reaching its decision. The district court
did not abuse its discretion in departing, as the sentence
advanced the objectives set forth in § 3553(a)(2) and was
justified on the facts of the case. See id.
Gamez next argues that § 1326(b)’s treatment of prior
aggravated felony convictions as sentencing factors is
unconstitutional. This constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gamez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), we have repeatedly rejected such arguments on the
No. 05-11139
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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). Gamez 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.
Accordingly, the judgment of the district court is AFFIRMED.