                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 25, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-40097
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OSMIN ANTONIO CEDILLOS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CR-530
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Osmin Antonio Cedillos appeals his guilty plea conviction

and sentence for illegal reentry.   He argues that (1) his North

Carolina felony conviction for possession of marijuana with

intent to distribute did not constitute a “felony drug

trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) (2004);

(2) the district court plainly erred in assessing two criminal

history points for two prior sentences pursuant to U.S.S.G.

§ 4A1.1(c); and (3) 8 U.S.C. § 1326(b)(1)&(2) are


     *
       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this opinion should not be published and is not precedent except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. 06-40097
                                  -2-

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).

     On de novo review, see United States v. Villegas, 404 F.3d

355, 359 (5th Cir. 2005), we hold that the district court did not

err in applying the § 2L1.2(b)(1)(B) enhancement because

Cedillos’ North Carolina conviction was punishable by

imprisonment for a term exceeding one year and was therefore a

“felony.”    See United States v. Harp, 406 F.3d 242, 246 (4th

Cir.), cert. denied, 126 S. Ct. 297 (2005).

     On plain error review, we hold that although the district

court clearly erred in assessing two criminal history points

pursuant to § 4A1.1(c) for sentences imposed more than 10 years

prior to the instant offense, see § 4A1.1(c), comment. (n.3),

Cedillos has failed to carry his burden of establishing that the

error affected his substantial rights.      See Villegas, 404 F.3d at

363-64.   The district court could, on remand, impose the same

sentence.    See United States v. Wheeler, 322 F.3d 823, 828 (5th

Cir 2003).   Alternatively, it is not reasonably probable that,

but for the district court’s misapplication of the Guidelines,

Cedillos would have received a lesser sentence because the

correct and incorrect guideline ranges overlap and he did not

receive a sentence substantially greater than would have

otherwise been permitted.    See United States v. Garza-Lopez, 410

F.3d 268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005);

Villegas, 404 F.3d at 364.
                           No. 06-40097
                                -3-

     Finally, Cedillos’ constitutional challenge is foreclosed by

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

Although Cedillos 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 Garza-Lopez, 410 F.3d at 276.   Cedillos

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.
