                                                           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. 05-41058
                            Conference Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

JOSE GARCIA-HERRERA,
                                        Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                         USDC No. 1:05-CR-221-ALL
                           --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

       Jose Garcia-Herrera appeals his sentence for illegal reentry

into the United States after deportation following a conviction

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

(b).       Although the Government seeks to dismiss Garcia-Herrera’s

appeal as barred by the appellate waiver provision in his plea

agreement, we need not decide whether the waiver precludes

consideration of the instant appeal as Garcia-Herrera’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).       Although Garcia-Herrera

       *
       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this opinion should not be published and is not precedent except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. 05-41058
                                -2-

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).   Garcia-Herrera 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.   His sentence is affirmed.

     AFFIRMED.
