United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 16, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-51646
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO ROSARIO VEGA-SOTO, also known as Francisco
Zavala-Gutierrez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-819-ALL
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Sergio Rosario Vega-Soto appeals the 96-month
sentence imposed following his plea of guilty to
illegally reentering the United States after
deportation. Vega-Soto argues that his sentence is
unreasonable and greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a). He does not
*
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this opinion should not be published and is not precedent except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. 05-51646
-2-
challenge the calculation of his guidelines sentencing
range.
A sentence, such as Vega-Soto’s, “within a properly
calculated Guideline range is presumptively
reasonable.” United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). We note that the district court
considered and rejected Vega-Soto’s arguments for a
departure or variance based on the application of the
§ 3553(a) factors to his case. Vega-Soto has failed to
demonstrate that his properly calculated guidelines
sentence was unreasonable. See Alonzo, 435 F.3d at
554; United States v. Mares, 402 F.3d 511, 519 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005).
Vega-Soto also argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the 96-month term of
imprisonment imposed in his case 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. Vega-Soto’s constitutional
challenge is foreclosed by Almendarez-Torres v. United
No. 05-51646
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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). Vega-Soto 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.