                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 25, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41517
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAVIER QUIROZ-GARZA,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-252-ALL
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Javier Quiroz-Garza appeals his guilty-plea conviction and

sentence for being present in the United States following

deportation in violation of 8 U.S.C. § 1326.   He challenges the

constitutionality of § 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 in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).

     Quiroz-Garza’s constitutional challenge is foreclosed by

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

     *
       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this opinion should not be published and is not precedent except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. 05-41517
                                -2-

Although Quiroz-Garza 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.), cert. denied, 126

S. Ct. 298 (2005).   Quiroz-Garza 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.
