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

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 06-40128
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE LUIS CHAVEZ-TOVAR,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-481-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jose Luis Chavez-Tovar appeals his guilty-plea conviction

of, and sentence for, violating 8 U.S.C. § 1326 by being found in

the United States without permission after deportation.         He

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

that the 37-month term of imprisonment imposed in his case

exceeds the statutory maximum sentence allowed for the § 1326(a)

offense charged in his indictment.    He challenges the

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



     *
       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this opinion should not be published and is not precedent except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. 06-40128
                                -2-

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

     Chavez-Tovar’s constitutional challenge is foreclosed by

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

Although he 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).    Chavez-

Tovar 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.
