                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 25, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 06-40073
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

DOLORES PADILLA-PECINA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-411-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Dolores Padilla-Pecina (Padilla) appeals his guilty-plea

conviction and sentence for being an alien found unlawfully in

the United States after deportation and after having been

convicted of an aggravated felony.    Padilla argues that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional.

     Padilla’s constitutional challenge is foreclosed by

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

Although Padilla contends that Almendarez-Torres was incorrectly

     *
       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this opinion should not be published and is not precedent except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. 06-40073
                                -2-

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).   Padilla 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.
