                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 23, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-40372
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MIGUEL RODRIGUEZ-MERCADO,
also known as Miguel Villafranco-Ponce,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 7:04-CR-973-ALL
                         --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Miguel Rodriguez-Mercado appeals his guilty-plea conviction

for being an alien unlawfully found in the United States after

deportation, having previously been convicted of an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b).

     Rodriguez-Mercado challenges the constitutionality of

§ 1326(b).     His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Rodriguez-Mercado contends that Almendarez-Torres was

     *
       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this opinion should not be published and is not precedent except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. 05-40372
                               -2-

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 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).   Rodriguez-Mercado 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.

     The judgment of the district court is AFFIRMED.
