                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 25, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41321
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FIDEL GARCIA-ARECHIGA, also known as Herberto Rodriguez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-157-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Fidel Garcia-Arechiga appeals his guilty-plea conviction and

sentence for illegal reentry into the United States after a

previous deportation.   He argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(b)(2) are unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000).

     Garcia-Arechiga’s constitutional challenge is foreclosed by

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


     *
       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this opinion should not be published and is not precedent except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. 05-41321
                                -2-

Although Garcia-Arechiga 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).

Garcia-Arechiga 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.
