                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 28, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40062
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MIGUEL SANCHEZ-AGUILERA, also known as Jimmy Robles,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-611-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Miguel Sanchez-Aguilera (Sanchez) appeals his conviction and

33-month sentence for illegal reentry following deportation.         He

argues that the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).   Sanchez contends

that his plea agreement, which contained a waiver-of-appeal

provision, does not bar this appeal because he is challenging the

constitutionality of the statute of conviction and his sentence


     *
       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this opinion should not be published and is not precedent except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. 06-40062
                                  -2-

is in excess of the statutory maximum.      The Government seeks to

enforce the appeal waiver.    We assume, arguendo only, that the

waiver does not bar the instant appeal.

     Sanchez’s constitutional challenge is foreclosed by

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

Although Sanchez 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).     Sanchez

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.    Because Sanchez has shown no

error in the judgment of the district court, that judgment is

AFFIRMED.
