United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2006
Charles R. Fulbruge III
No. 05-51499 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GARCIA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
No. 2:05-CR-458-1
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Before SMITH, WIENER, and OWEN, Circuit Judges
PER CURIAM:*
Juan Garcia-Hernandez appeals the 57-month sentence imposed
following his plea of guilty of illegally reentering the United
States after deportation. He contends that his sentence is unrea-
sonable in light of 18 U.S.C. § 3553(a).
Garcia’s sentence is within a properly calculated advisory
guideline range and is presumed reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Such a sentence is giv-
*
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opinion should not be published and is not precedent except under the limited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.
en “great deference,” and we infer that the sentencing court con-
sidered all the factors for a fair sentence under § 3553(a). See
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.), cert. de-
nied, 126 S. Ct. 43 (2005). Garcia has failed to rebut the pre-
sumption that his sentence, which is at the bottom of the applic-
able sentencing guideline range, is reasonable. See Alonzo, 435
F.3d at 554.
Garcia 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). Garcia’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Garcia contends that Almendarez-Torres was incor-
rectly decided and that a majority of the Supreme Court would over-
rule Almendarez-Torres in light of Apprendi, we have repeatedly re-
jected such arguments on the basis that Almendarez-Torres remains
binding. See Rangel-Reyes v. United States, 126 S. Ct. 2873
(2006); United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Garcia properly concedes that
his argument is foreclosed in light of Almendarez-Torres and cir-
cuit precedent, but he raises it here to preserve it for further
review.
AFFIRMED.