                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 March 17, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40868
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

HUGO ALBERTO ARVIZU-GARCIA,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:04-CR-184-ALL
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the conviction and sentence of Hugo

Alberto Arvizu-Garcia (Arvizu) for illegal reentry.       United

States v. Arvizu-Garcia, No. 04-40868 (5th Cir. Dec. 17, 2004)

(unpublished).     The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 543

U.S. 220 (2005).     Arvizu challenges the constitutionality of 8




     *
       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this opinion should not be published and is not precedent except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. 04-40868
                                -2-

U.S.C. § 1326(b)(1) and (2) and, additionally, the district

court’s application of the mandatory Sentencing Guidelines.

     Arvizu’s constitutional challenge to § 1326(b) is foreclosed

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

Although Arvizu contends that Almendarez-Torres was 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).   Arvizu 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.

     Arvizu’s claim that the district court erred in sentencing

him pursuant to the mandatory Sentencing Guidelines is barred by

his valid appeal waiver.   See United States v. Burns, 433 F.3d

442, 450-51 (5th Cir. 2005); United States v. Bond, 414 F.3d 542,

545 (2005).

     AFFIRMED IN PART; DISMISSED IN PART.
