                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41308
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

SERVANDO RODRIGUEZ-CUELLAR,

                                     Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:05-CR-328-ALL
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Servando Rodriguez-Cuellar pleaded guilty to an indictment

charging him with being an alien unlawfully found in the United

States after deportation following an aggravated-felony

conviction.    Rodriguez-Cuellar was sentenced to 46 months in

prison.   He gave timely notice of appeal.

     Rodriguez-Cuellar 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


     *
       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this opinion should not be published and is not precedent except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. 05-41308
                                -2-

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

New Jersey, 530 U.S. 466 (2000).   The Government argues that the

waiver provision in Rodriguez-Cuellar’s plea agreement precludes

his attack on the constitutionality of § 1326(b) and that, as a

result of the waiver, Rodriguez-Cuellar lacks standing to

challenge the constitutionality of § 1326(b).   We assume,

arguendo only, that the waiver does not bar the instant appeal.

     Rodriguez-Cuellar’s constitutional challenge to § 1326(b),

however, is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998).   Although Rodriguez-Cuellar 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).   Rodriguez-Cuellar 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 judgment of the district court is AFFIRMED.
