                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 14, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-41107
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CAMILO VARGAS-ESPINOZA,

                                      Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 1:05-CR-12-ALL
                        --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Camilo Vargas-Espinoza (“Vargas”) appeals from his

guilty-plea conviction for attempted illegal reentry after

removal.   The district court sentenced Vargas to 46 months of

imprisonment and three years of supervised release.     To the

extent that Vargas’s challenge to the constitutionality of

8 U.S.C. § 1326 is construed as a challenge to his conviction, it

is not precluded by the terms of his appellate-waiver provision.




     *
       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this opinion should not be published and is not precedent except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. 05-41107
                                -2-

     Vargas’s constitutional challenge is foreclosed by

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

Although Vargas contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), 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).   Vargas 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.

     Accordingly, the judgment of the district court is

 AFFIRMED.
