                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40271
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OSVALDO REA-HERRERA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-746-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Osvaldo Rea-Herrera (“Rea”) appeals the 46-month sentence

imposed following entry of his guilty plea to a charge of being

found illegally in the United States after he had been removed

subsequent to his conviction for an aggravated felony.      Rea’s

sole issue on appeal is a challenge to the validity of

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

use of his prior conviction to increase his sentence.      Rea

asserts for the first time on appeal that the “felony” and


     *
       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this opinion should not be published and is not precedent except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. 05-40271
                                 -2-

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional because they are treated as sentencing factors

rather than as elements of the offense.    Rea concedes that his

arguments are foreclosed by circuit precedent and admits that he

raises the arguments merely to preserve them for Supreme Court

review.

       As Rea concedes, his arguments are foreclosed.   See United

States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.),

cert. denied, 126 S. Ct. 253 (2005); United States v. Mancia-

Perez, 331 F.3d 464, 470 (5th Cir. 2003).    The Supreme Court in

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), did not

overrule Almendarez-Torres, and we must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Mancia-Perez, 331 F.3d at 470 (internal quotation marks and

citation omitted).

       AFFIRMED.
