United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-51511
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MANUEL VANEGAS-SOTO
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-928-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Manuel Vanegas-Soto (Vanegas) appeals the sentence imposed
following his guilty-plea conviction of illegal reentry after
deportation, in violation of 8 U.S.C. § 1326.
Vanegas contends that his sentence 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. Vanegas also argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that his imprisonment term exceeds
*
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this opinion should not be published and is not precedent except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. 05-51511
-2-
the statutory maximum sentence allowed for the § 1326 offense
charged in his indictment.
The record reflects that the district court considered
factors set forth in § 3553(a) when it determined that a 77-month
term of imprisonment was a fair and reasonable sentence in
Vanegas’s case. See United States v. Mares, 402 F.3d 511, 518-19
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Vanegas’s
sentence fell at the lowest end of his properly calculated
advisory guideline range and is presumptively reasonable. See
United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).
Vanegas has failed to rebut that presumption. See id.
Vanegas’s challenge to 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 is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Vanegas 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). Vanegas 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.