                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                         March 14, 2007

                                                             Charles R. Fulbruge III
                                                                     Clerk
                            No. 05-11087
                          Summary Calendar


                     UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                               versus

   CARLOS MAURICIO ORDUNO-GOMEZ, also known as Carlos Mauricio
Orduno Gomez, also known as Carlos Oruno, also known as Christian
                             Cardoza,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
                for the Northern District of Texas
                         (4:05-CR-28-ALL)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Carlos    Mauricio   Orduno-Gomez   appeals     his      guilty-plea

conviction and subsequent sentence for illegal reentry.

     Orduno’s constitutional challenge to 8 U.S.C. § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998). Although Orduno contends Almendarez-Torres was incorrectly

decided and a majority of the Supreme Court would overrule it in



     *
       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this opinion should not be published and is not precedent except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.
the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have

repeatedly rejected such contentions because Almendarez-Torres

remains binding. See, e.g., United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).                 Orduno

properly   concedes   his     claim    is    foreclosed      in   the   light   of

Almendarez-Torres and circuit precedent; he raises it only to

preserve it for further review.

     The   district   court    erred    in   enhancing       Orduno’s   sentence

pursuant to U.S.S.G. § 2L1.2(b(1)(C) by determining his state

conviction for simple possession of a controlled substance was an

“aggravated   felony”.        See   United    States    v.    Estrada-Mendoza,

__F.3d__, No. 05-41627, 2007 WL 6583, *2 (5th Cir. 3 Jan. 2007).

Consequently, Orduno’s sentence is vacated and this matter remanded

for resentencing.     Id.

     Accordingly, we need not reach his claim, raised for the first

time on appeal, that restricting the U.S.S.G. § 5K3.1 early-

disposition program to certain geographical locations violated his

due-process and equal-protection rights.               See United States v.

Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

  CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




                                       2
