                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 11, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41441
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                              versus

                       ARMANDO TORRES-LUNA,

                       Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-377-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

     Armando Torres-Luna (Torres) appeals his guilty-plea

conviction and the 36-month sentence imposed for being found

illegally present in the United States following deportation.          He

argues that the Government breached the plea agreement by failing

to orally recommend that he be sentenced at the low end of his

guideline range.   Torres has not shown a breach of the plea

agreement, under plain-error review, given that the Government’s

recommendation was included in his presentence report.       See


     *
       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this opinion should not be published and is not precedent except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. 05-41441
                                -2-

United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).

Moreover, contrary to Torres’s assertions, the Government’s

failure to concur in his motion for a downward departure did not

constitute an affirmative request for a specific sentence in

contravention of the plea agreement.

     Torres also asserts that the “felony” and “aggravated

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

unconstitutional.   The constitutional issue raised is foreclosed

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

Although Torres contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

it 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).   Torres 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.

     The district court’s judgment is AFFIRMED.
