                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   August 28, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-41732
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GRACIELA BARBOSA-CANTU,
                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:05-CR-594
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Graciela Barbosa-Cantu (Barbosa) appeals her conviction and

68-month sentence for illegal reentry following deportation.          She

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).    Barbosa contends

that her plea agreement, which contained a waiver-of-appeal

provision, does not bar this appeal because she is challenging

the constitutionality of the statute of conviction and her

sentence is in excess of the statutory maximum.    The Government

     *
       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this opinion should not be published and is not precedent except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. 05-41732
                                -2-

seeks to enforce the appeal waiver.   We assume, arguendo only,

that the waiver does not bar the instant appeal.

     Barbosa’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Barbosa 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).    Barbosa

properly concedes that her argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but she raises it here

to preserve it for further review.    Because Barbosa has shown no

error in the judgment of the district court, that judgment is

AFFIRMED.
