                                                       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. 06-40244
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BENITO ESPIRICUETA-CASANOVA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 7:05-CR-761
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Benito Espiricueta-Casanova 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 33-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 the constitutionality of § 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this opinion should not be published and is not precedent except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. 06-40244
                                -2-

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

a jury.

     Espiricueta-Casanova’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).   Espiricueta-Casanova 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.
