                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41216
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS ORDONES-FERRUZCA, also known as Rafael Ornelas-Garcia,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:05-CR-309-ALL
                        --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jesus Ordones-Ferruzca (Ordones) appeals from his conviction

of being illegally present in the United States after having been

deported.   He challenges the constitutionality of the “felony”

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

contends that his challenge is not barred by the appeal-waiver

provision of his plea agreement.   The Government seeks

enforcement of the waiver provision.   Because Ordones’s




     *
       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this opinion should not be published and is not precedent except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. 05-41216
                                -2-

substantive contention is foreclosed, we need not address whether

to enforce the waiver provision.

     The constitutional issue raised by Ordones is foreclosed by

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

Although Ordones 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).   Ordones 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.

     The district court’s judgment is AFFIRMED.
