                                                       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. 05-41416
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARTIN CABRERA-NINO,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-278-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Martin Cabrera-Nino (Cabrera) pleaded guilty to Count 1 of

an indictment charging him with entering the United States

illegally following deportation.    Cabrera was sentenced to 46

months of imprisonment.    He gave timely notice of his appeal.

     Cabrera 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

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

     *
       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this opinion should not be published and is not precedent except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. 05-41416
                               - 2 -

waiver provision in Cabrera’s plea agreement precludes his attack

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

the waiver, Cabrera lacks standing to challenge the

constitutionality of § 1326(b).   We assume, arguendo only, that

the waiver does not bar the instant appeal.

     Cabrera’s constitutional challenge is foreclosed by

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

Although Cabrera 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).   Cabrera

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.
