                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40670
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LORENZO AMAYA-REYES,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 7:04-CR-604-1
                        --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Lorenzo Amaya-Reyes appeals his guilty-plea conviction and

sentence for being unlawfully found in the United States after

deportation, having previously been convicted of an aggravated

felony.   He argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

     In his plea agreement, Amaya-Reyes waived “any right to have

facts that the law makes essential to the punishment either


     *
       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this opinion should not be published and is not precedent except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. 05-40670
                                -2-

(1) charged in the indictment or (2) proven to a jury or (3)

proved beyond a reasonable doubt.”   The Government seeks

enforcement of the waiver, arguing that it precludes Amaya-

Reyes’s argument on appeal.   We assume, arguendo only, that the

waiver does not bar the instant appeal.

     Amaya-Reyes’s constitutional challenge is foreclosed by

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

Although Amaya-Reyes 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).   Amaya-Reyes 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.
