United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2007
Charles R. Fulbruge III
Clerk
No. 06-50046
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ORTEGA-GAMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1492-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Luis Ortega-Gamez (Ortega) appeals the 41-month
sentence imposed following his guilty-plea conviction for illegal
re-entry, in violation of 8 U.S.C. § 1326. He argues that,
although his sentence was at the bottom of the guidelines range,
it 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. He also argues, in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), that his sentence exceeds the
*
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this opinion should not be published and is not precedent except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. 06-50046
-2-
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 41-month
term of imprisonment was a fair and reasonable sentence in
Ortega’s case. See United States v. Mares, 402 F.3d 511, 518-19
(5th Cir. 2005); see also United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006). Ortega has not shown that this sentence was
unreasonable or that this court should not defer to the district
court’s determinations at sentencing. See Mares, 402 F.3d
at 519.
Ortega’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 Ortega 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. 2005). Ortega 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.