                                                        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. 05-40976
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE DE JESUS BAENA-AGUILAR,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-115-ALL
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose De Jesus Baena-Aguilar (Baena) appeals his illegal

reentry conviction, challenging the constitutionality of 8 U.S.C.

§ 1326(b)(1), (2).   Baena’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).    Although Baena contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such


     *
       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this opinion should not be published and is not precedent except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. 05-40976
                               -2-

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).   Baena 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.
