                                                        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. 05-41002
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN CARLOS VALDIVIA-CARDONA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-396-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Juan Carlos Valdivia-Cardona (Valdivia) 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 46-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

     *
       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this opinion should not be published and is not precedent except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. 05-41002
                                -2-

sentencing factors rather than elements of the offense that must

be found by a jury.

     Valdivia’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).   Valdivia

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.
