                                                       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. 05-40849
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAMON ORNELAS-RODRIGUEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-109-ALL
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Ramon Ornelas-Rodriguez appeals his guilty-plea sentence for

being unlawfully found in the United States following

deportation, in violation of 8 U.S.C. § 1326(a) and (b).       We need

not decide the applicability of the waiver provisions in Ornelas-

Rodriguez’s plea agreement because his constitutional challenge

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

224, 235 (1998).   Although Ornelas-Rodriguez contends that

Almendarez-Torres was incorrectly decided and that a majority of


     *
       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this opinion should not be published and is not precedent except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. 05-40849
                                -2-

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).

Ornelas-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.
