                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 3, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-50084
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE JIAMON ZELAYA-PARADA, also known as Jose Jaime
Zelaya-Parada, also known as Jose Jaime Zelaya, also known
as Jose Jaime Parada

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:05-CR-1713-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Zelaya-Parada appeals his guilty-plea conviction of, and

sentence for, violating 8 U.S.C. § 1326 by being found in the

United States without permission after deportation.

Zelaya-Parada argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that the 31-month term of imprisonment imposed

in his case exceeds the 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

     *
       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this opinion should not be published and is not precedent except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. 06-50084
                                  -2-

and aggravated felony convictions as sentencing factors rather

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

     Zelaya-Parada’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).

Zelaya-Parada 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.

      Zelaya-Parada also argues that his guilty plea is not valid

because (1) the district court failed to give him full and

correct information regarding the maximum statutory penalty that

he would face for the offense and (2) the factual basis for his

plea was insufficient to establish that he was “found in” the

United States.    Zelaya-Parada’s first argument is premised on the

unconstitutionality of § 1326.    However, the Supreme Court has

held that § 1326 is constitutional.     Almendarez-Torres, 523 U.S.

at 246.   As to the second argument, Zelaya-Parada has not shown

plain error.     See United States v. Vonn, 535 U.S. 55, 1054-55

2002; United States v. Pacheco-Medina, 212 F.3d 1162, 1163-64

(9th Cir. 2000).

     As the Government seeks to enforce Zelaya-Parada's waiver of

sentencing issues and the waiver is valid, we do not address
                            No. 06-50084
                                 -3-

those issues.    See United States v. Story, 439 F.3d 226, 230-31

(5th Cir. 2006).

     AFFIRMED.
