                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         May 2, 2007

                                                                Charles R. Fulbruge III
                               No. 06-50572                             Clerk
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

DAVID DAVILA-RODRIGUEZ,
also known as Richard Gonzalez,

                                         Defendant-Appellant.


                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                         No. 3:05-CR-2743-ALL
                         --------------------


Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     David Davila-Rodriguez appeals his guilty-plea conviction of,

and sentence for, attempted illegal reentry into the United States

following removal.      Davila-Rodriguez contends that the district

court violated the Sixth Amendment by denying his request, the day

before sentencing, for substitution of retained counsel for ap-

pointed counsel.     We have reviewed the record and briefs and con-

clude that the court did not abuse its discretion by denying the


     *
        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opinion should not be published and is not precedent except under the limited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. 06-50572
                                -2-

motion. See United States v. Norris, 780 F.2d 1207, 1211 (5th Cir.

1986); see also United States v. Silva, 611 F.2d 78, 79 (5th Cir.

1980).

     Davila-Rodriguez also argues, in light of Apprendi v. New Jer-

sey, 530 U.S. 466 (2000), that his 46-month term of imprisonment

exceeds the statutory maximum sentence allowed for the 8 U.S.C.

§ 1326(a) offense of conviction. He challenges the constitutional-

ity of § 1326(b)’s treatment of felony and aggravated felony con-

victions as sentencing factors rather than elements of the offense

that must be found by a jury.

     Davila-Rodriguez’s constitutional challenge is foreclosed by

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

Although he contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule Almendar-

ez-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); Rangel-Reyes v. United States, 126

S. Ct. 2873 (2006).   Davila-Rodriguez 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.
