                                                       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. 05-41731
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN RICARDO GUTIERREZ-GARCIA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-586-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Juan Ricardo Gutierrez-Garcia (Gutierrez) appeals his

guilty-plea conviction for unlawful reentry in violation of 8

U.S.C. § 1326(b).   In his sole issue on appeal, Gutierrez argues

that § 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury is unconstitutional in light

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




     *
       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this opinion should not be published and is not precedent except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. 05-41731
                                  -2-

     Gutierrez’s appeal waiver is not binding because the

Government does not seek to enforce the waiver and has therefore

waived the issue.   See United States v. Story, 439 F.3d 226, 230-

31 & n.5 (5th Cir. 2006).    Gutierrez’s constitutional argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Gutierrez 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).

Gutierrez 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.
