                                                       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. 05-41847
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

IGNACIO HERNANDEZ-BELTRAN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:05-CR-577
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Ignacio Hernandez-Beltran appeals his guilty plea conviction

and sentence for being unlawfully present in the United States

after deportation following an aggravated felony conviction.         He

argues that the “felony” and “aggravated felony” provisions of 8

U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), and contends that

his challenge is not barred by the appeal-waiver provision in his




     *
       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this opinion should not be published and is not precedent except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. 05-41847
                                -2-

plea agreement.   The Government seeks enforcement of the waiver

provision.

     We assume, arguendo only, that the waiver does not bar the

instant appeal.   Although Hernandez-Beltran contends that

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