United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 2, 2006
Charles R. Fulbruge III
Clerk
No. 06-50253
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAN MYERS-PACHECO, also known as Adan Myers,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-445-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Adan Myers-Pacheco appeals from his guilty-plea conviction
for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2).
Myers-Pacheco argues that the district court imposed an
unreasonable sentence because it failed to consider the impact of
his belief that he was a United States citizen on the relevant
§ 3553(a) sentencing factors. See 18 U.S.C. § 3553(a)(1)-(5).
Although the court did not identify each factor under § 3553(a),
the court considered and rejected the impact of Myers-Pacheco’s
beliefs about his citizenship on the sentencing factors. In
*
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this opinion should not be published and is not precedent except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. 06-50253
-2-
fact, the district court’s questioning concerning the
contradiction between Myers-Pacheco’s belief and his action in
obtaining a resident alien card reflected the court’s skepticism
regarding Myers-Pacheco’s belief that he was a citizen.
Accordingly, Myers-Pacheco has not overcome the presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551,
553-54 (5th Cir. 2006).
Myers-Pacheco also argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the 46-month term of
imprisonment 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 aggravated felony convictions as sentencing factors rather
than elements of the offense that must be found by a jury.
Myers-Pacheco’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). Myers-
Pacheco 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.