                                                       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. 05-41671
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DANIEL PENA-RAMIREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-996-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Daniel Pena-Ramirez appeals his guilty-plea conviction of,

and sentence for, violating 8 U.S.C. § 1326 by being found in the

United States without permission after deportation.     He argues,

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the

70-month term of imprisonment imposed in his case exceeds the

statutory maximum sentence allowed for the § 1326(a) offense

charged in his indictment.   He challenges as unconstitutional

both facially and as applied in his case § 1326(b)’s treatment of

prior felony and aggravated felony convictions as sentencing

     *
       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this opinion should not be published and is not precedent except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. 05-41671
                                -2-

factors rather than elements of the offense that must be found by

a jury.

     Pena-Ramirez’s constitutional challenge is foreclosed by

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

Although he 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).   Pena-

Ramirez 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.
