                                                       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, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40105
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NICHOLAS MALDONADO-GARCIA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-642-ALL
                      --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Nicholas Maldonado-Garcia (Maldonado) appeals his guilty

plea conviction and sentence for illegal reentry following

deportation.   Maldonado contends that the district court erred in

treating his Texas burglary of a habitation conviction as a crime

of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).   As Maldonado

concedes, his argument has been rejected by this court.       See

United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.),



cert. denied, 127 S. Ct. 265 (2006); United States v.

     *
       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this opinion should not be published and is not precedent except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. 06-40105
                               -2-

Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005),

cert. denied, 126 S. Ct. 1398 (2006).

     Maldonado also challenges, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than as elements of the

offense that must be found by a jury.    This issue is foreclosed

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

Although Maldonado 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 2005).   Maldonado

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.
