                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40030
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS FERMIN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:05-CR-724
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jose Luis Fermin 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



     *
       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this opinion should not be published and is not precedent except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. 06-40030
                                -2-

convictions as sentencing factors rather than elements of the

offense that must be found by a jury.

     The Government does not seek to invoke the appellate waiver

provision in Fermin’s plea agreement and has thus waived the

issue.   See United States v. Story, 439 F.3d 226, 230-31 (5th

Cir. 2006).   Fermin’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).   Fermin

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.
