* 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should not be published and is not precedent except under the limited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

August 17, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50028

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ERIK ALBERTO MENDEZ-LOPEZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:06-CR-1235-1

Before HIGGINBOTHAM, STEWART, AND OWEN, Circuit Judges.

PER CURIAM:*

Erik Alberto Mendez-Lopez (Mendez) appeals his guilty-plea conviction

and sentence for illegal reentry following deportation. The Government has

moved for summary affirmance. Alternatively, the Government seeks an

extension of time to file a brief.

Mendez asserts that his 46-month guideline sentence violates United

States v. Booker, 543 U.S. 220 (2005), and is unreasonable. The presumption of

reasonableness afforded a sentence within a properly calculated advisory
No. 07-50028

2

guideline range is consistent with Booker. See Rita v. United States, 127 S. Ct.

2456, 2462 (2007). The record reflects that the district court considered

Mendez’s arguments, the recommendation of the presentence report, and the

applicable guideline range. Because the district court exercised its discretion to

impose a sentence within a properly calculated guideline range, the sentence is

presumptively reasonable and we may infer thatthe district court considered all

the factors for a fair sentence set forth in the Guidelines. See Rita, 127 S. Ct. at

2462-70; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).

Mendez also argues that his sentence is unreasonable because the district

court failed to properly assess the factors set forth in § 3553(a). The district

court's sentence was imposed with sufficient consideration of the § 3553(a)

factors and is not unreasonable. See United States v. Nikonova, 480 F.3d 371,

376 (5th Cir. 2007).

Mendez also argues, in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), that the 46-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.

Mendez’s constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although he contends that AlmendarezTorres 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). Mendez

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.
No. 07-50028

3

Accordingly, the Government’s motion for summary affirmance is

GRANTED, its alternative request for an extension of time is DENIED as

unnecessary, and the decision of the district court is AFFIRMED.