* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41509

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IRWIN JOSE BONILLA-LEMUS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-479

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Irwin Jose Bonilla-Lemus (Bonilla) pleaded guilty to being

an alien found unlawfully in the United States after having been

previously deported. At the time, Bonilla was serving a two-year

term of supervised release following a prior conviction and

prison sentence for importing a quantity of marijuana and

possessing with intent to distribute a quantity of marijuana. 

The district court sentenced Bonilla to 33 months of imprisonment

and two years of supervised release. The district court also
No. 06-41509

-2-

revoked Bonilla’s supervised release and imposed a three-month

prison sentence, to be served concurrently with the sentence

imposed for unlawful entry. Bonilla appeals, asserting that his

sentence is unreasonable because this court’s rulings, post

United States v. Booker, 543 U.S. 220 (2005), have effectively

reinstated the mandatory Guideline regime condemned in Booker. 

The parties disagree concerning the standard of review that

governs. We do not reach that issue because Bonilla’s sentence

passes muster under either standard.

Bonilla concedes that his argument is foreclosed by circuit

precedent and that he wishes to preserve his arguments for

further review in light of the grants of certiorari in Rita v.

United States, 127 S. Ct. 551 (2006), and Claiborne v. United

States, 127 S. Ct. 551 (2006). Further, the record shows that

the district court fulfilled its duty to consider the relevant

18 U.S.C. § 3553 factors in addition to the Guidelines, and

sentenced Bonilla to 33 months of imprisonment, the lowest end of

the sentencing guidelines range. See United States v. Mares, 402

F.3d 511, 518-19 (5th Cir. 2005). There is no indication that

the sentence imposed is unreasonable. Id. at 519.

Bonilla also contends that district courts should be free to

disagree with the Guidelines’s policy choices and that the

district court should have been allowed to impose a belowguidelines sentence in part because of his family

responsibilities and strong ties to the United States. Bonilla
No. 06-41509

-3-

raises the argument only to preserve it for further review. As

Bonilla concedes, his contention is foreclosed. See United

States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir. 2006); United

States v. Guidry, 462 F.3d 373, 377 (5th Cir. 2006).

Bonilla argues, in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), that the 33-month term of imprisonment imposed in his

case exceeds the statutory maximum sentence allowed for the

8 U.S.C. § 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. 

Bonilla’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. 2005). Bonilla 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.