United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 7, 2007
Charles R. Fulbruge III
Clerk
No. 05-51545
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ROGELIO NAVAREZ-PINEDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1580-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jesus Rogelio Navarez-Pineda appeals his 46-month sentence
of imprisonment imposed following his guilty-plea conviction for
illegal reentry into the United States following deportation, in
violation of 8 U.S.C. § 1326. He argues that his sentence was
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 satisfy
the sentencing goals set forth in § 3553(a).
*
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this opinion should not be published and is not precedent except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. 05-51545
-2-
Navarez-Pineda’s sentence was within a properly calculated
advisory guideline range and is presumed reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Giving
“great deference” to such a sentence, and recognizing that the
sentencing court considered all the factors for a fair sentence
under § 3553(a), we conclude that Navarez-Pineda has failed to
rebut the presumption that his sentence was reasonable. See id.
Navarez-Pineda argues for the first time on appeal that in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the 46-
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.
Navarez-Pineda’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). Navarez-
Pineda properly concedes that his argument is foreclosed in light
No. 05-51545
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of Almendarez-Torres and circuit precedent, but he raises it here
to preserve it for further review.
AFFIRMED.