                                                       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. 06-40160
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALVARO RODRIGUEZ-BENITEZ,

                                    Defendant-Appellant.


                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-684-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Alvaro Rodriguez-Benitez (Rodriguez) appeals his guilty-plea

conviction 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 prison sentence imposed in his case

exceeds the two-year 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

     *
       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this opinion should not be published and is not precedent except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. 06-40160
                                -2-

aggravated-felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

     Rodriguez’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).    Rodriguez

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.
