United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 7, 2006

Charles R. Fulbruge III Clerk No. 06-50174 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL ALEJANDRO PENALOZA-RAMIREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:05-CR-2171-ALL --------------------

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Manuel Alejandro Penaloza-Ramirez, a citizen of Mexico,

pleaded guilty to illegal reentry after deportation in violation of

and was sentenced to 84 months of imprisonment and

three years of supervised release. Penaloza-Ramirez argues that

his sentence is unreasonable as measured by the requirements of

(a). “[A] sentence within a properly calculated

Guideline range is presumptively reasonable.” United States v.

Alonzo,

(5th Cir. 2006). The district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. sentenced Penaloza-Ramirez to 84 months, on the lower end of the

advisory guideline range of 77 to 96 months. Given Penaloza-

Ramirez’s extensive criminal history, considering that Penaloza-

Ramirez had been deported on four separate occasions, with no

mitigating explanations for why he returned to the United States

the three previous times, and given the seriousness of the offense

which resulted in the 16-point enhancement, Penaloza-Ramirez has

not rebutted the presumption that his sentence of 84 months was

reasonable.

Penaloza-Ramirez also argues, in light of Apprendi v. New

Jersey,

(2000), that the 84-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.

Penaloza-Ramirez’s constitutional challenge to § 1326 is

foreclosed by Almendarez-Torres v. United States,

(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,

(5th

Cir.), cert. denied,

(2005). Penaloza-Ramirez

properly concedes that his argument is foreclosed in light of

2 Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

AFFIRMED.

3