                                                       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. 06-40014
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

CESAR ARMANDO LEAL-RIVERA,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 7:02-CR-154
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Cesar Armando Leal-Rivera pleaded guilty to illegal reentry

and was sentenced to 28 months of imprisonment to be followed by

a two-year term of supervised release.   He now appeals the 24-

month sentence imposed following the revocation of his term of

supervised release.

     Leal argues that the district court imposed a sentence above

the statutory maximum.   He contends that the top of the

sentencing guidelines range found applicable by the district

court, rather than the statutory maximum under 8 U.S.C.

     *
       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this opinion should not be published and is not precedent except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. 06-40014
                                -2-

§ 1326(b), governs the classification of his underlying felony

for purposes of revocation of supervised release.

     In United States v. Alfaro-Hernandez, 453 F.3d 280, 281-82

(5th Cir. 2006), the court held that, in determining the

statutory maximum penalty that can be imposed upon revocation of

supervised release, the felony classification of the defendant’s

underlying offense was to be determined by statute and not by the

Sentencing Guidelines.   Leal acknowledges that his argument is

foreclosed by Alfaro-Hernandez, but he wishes to preserve the

argument for possible further Supreme Court review.

     The sentence is AFFIRMED.
