United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 8, 2006
Charles R. Fulbruge III
Clerk
No. 06-40534
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ALVARADO-GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(1:05-CR-895-ALL)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Martin Alvarado-Gonzalez (Alvarado)
appeals the 41-month sentence imposed following his plea of guilty
to being an alien unlawfully present in the United States following
deportation for an aggravated felony. He contends that his 16-
level increase for a prior aggravated felony and his resultant
sentence were unreasonable in light of the factors set forth in 18
U.S.C. § 3553(a).
Alvarado’s sentence was within a properly calculated advisory
guideline range and is presumed reasonable. See United States v.
*
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this opinion should not be published and is not precedent except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.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Such a sentence is
given “great deference,” and we infer that the sentencing court
considered all the factors for a fair sentence under § 3553(a).
See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). We conclude that Alvarado has failed
to rebut the presumption that his sentence, which was at the bottom
of the applicable range under the Sentencing Guidelines, was
reasonable. See United States v. Smith, 440 F.3d 704, 707 (5th
Cir. 2006).
Alvarado 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). Alvarado’s constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Alvarado 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). Alvarado 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.
2