United States v. Mendoza-Galvan

* 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this opinion should not be published and is not precedent except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
F I L E D
October 31, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50211
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDINO MENDOZA-GALVAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1643
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bernardino Mendoza-Galvan (Mendoza) appeals his guilty-plea
conviction and the 41-month sentence imposed for illegally
reentering the United States after removal. Mendoza argues that
his sentence is unreasonable and that it exceeds the statutory
maximum for the offense charged in his indictment.
A sentence, such as Mendoza’s, “within a properly
calculated Guideline range is presumptively reasonable.”
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Mendoza argues that the district court failed to consider the

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mitigating evidence he presented and misweighed the guidelines
range. However, Mendoza has failed to demonstrate that his
properly calculated guidelines sentence was unreasonable. See
Alonzo, 435 F.3d at 554; United States v. Mares, 402 F.3d 511,
519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Mendoza also argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 41-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.
Mendoza’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). Mendoza
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.

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