United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-51133
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ALVAREZ-CEDILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-356-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Hector Alvarez-Cedillo 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.
Alvarez-Cedillo contends that 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 Alvarez-Cedillo
to a 52-month term of imprisonment, which was within the properly
*
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this opinion should not be published and is not precedent except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. 05-51133
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calculated advisory range under the Sentencing Guidelines.
Alvarez-Cedillo’s sentence is presumptively reasonable, and he
has failed to rebut that presumption. United States v. Alonzo,
435 F.3d 551, 554-55 (5th Cir. 2006). Alvarez-Cedillo preserves
for further review his argument that the presumption of
reasonableness is contrary to United States v. Booker, 543 U.S.
220 (2005).
Alvarez-Cedillo also argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that his sentence 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.
Alvarez-Cedillo’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). Alvarez-
Cedillo 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.
No. 05-51133
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AFFIRMED.