                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 23, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-41006
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

TOMAS BETANCOURT-OCHOA,
                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-180-ALL
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Tomas Betancourt-Ochoa (Betancourt) pleaded guilty to

unlawful presence in the United States following deportation

after having been convicted of an aggravated felony, in violation

of 8 U.S.C. § 1326(a) and (b).    The district court sentenced him

to 37 months of imprisonment, to be followed by three years of

supervised release.

     Betancourt challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must

     *
       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this opinion should not be published and is not precedent except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. 05-41006
                                -2-

be found by a jury.   We decline ruling on the applicability of

the waiver provisions in Betancourt’s plea agreement because his

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).   Although Betancourt

contends that Almendarez-Torres was incorrectly decided and that

a majority of the Supreme Court would overrule Almendarez-Torres

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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).   Betancourt 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.
