                                                       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. 05-40058
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FRANCISCO GERARDO VASQUEZ-TORRES,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-703-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Francisco Gerardo Vasquez-Torres (Vasquez) appeals from his

guilty plea conviction and sentence for illegal reentry.         Vasquez

argues for the first time on appeal pursuant to Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.

The Government does not seek to enforce Vasquez’s appeal waiver;

therefore, it is nonbinding.     See United States v. Story, 439

F.3d 226, 231 (5th Cir. 2006).


     *
       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this opinion should not be published and is not precedent except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. 05-40058
                                -2-

     Vasquez’s constitutional challenge is foreclosed by

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

Although Vasquez 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).   Vasquez

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.
