                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 13, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-41381
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TOMAS MARES-CALDERON,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-228-ALL
                      --------------------

Before KING, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Tomas Mares-Calderon (Mares) pleaded guilty to count 1 of an

indictment charging him with entering the United States illegally

following deportation.   Mares was sentenced to a 21-month term of

imprisonment and to a two-year period of supervised release.

Mares gave timely notice of his appeal.

     Mares challenges the constitutionality of 8 U.S.C.

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

convictions as sentencing factors rather than elements of the


     *
       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this opinion should not be published and is not precedent except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. 05-41381
                              - 2 -

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   Mares’s argument is foreclosed by

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

which the Supreme Court held that treatment of prior convictions

as sentencing factors in § 1326(b)(1) and (2) was constitutional.

Although Mares contends that a majority of the Supreme Court

would now consider Almendarez-Torres to be incorrectly decided in

light of Apprendi, “[t]his court has repeatedly rejected

arguments like the one made by [Mares] and has held that

Almendarez-Torres remains binding despite Apprendi.”     United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).   Mares concedes as much, but he

raises the argument to preserve it for further review.

     AFFIRMED.
