                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 31, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41662
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VICTOR RAMIREZ-NICOLAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:05-CR-298
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Victor Ramirez-Nicolas (Ramirez) pleaded guilty to a single-

count indictment charging that “after having been convicted of an

aggravated felony, [he] knowingly and unlawfully was present in

the United States” in violation of “Title 8, United States Code,

Sections 1326(a) and 1326 (b).”   Ramirez entered his plea

pursuant to a plea agreement wherein he waived the right to

appeal his sentence, but reserved the right to appeal a “sentence




     *
       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this opinion should not be published and is not precedent except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. 05-41662
                                -2-

imposed above the statutory maximum” and the right to appeal an

“upward departure” from the Sentencing Guidelines.**

     As he did in the district court, Ramirez argues that

§ 1326(b) is unconstitutional on its face.   The Government

asserts that Ramirez does not have standing to bring a facial

challenge to the constitutionality of § 1326(b) because Ramirez’s

prior aggravated-felony conviction was, in fact, alleged in his

indictment and admitted by him at the rearraignment, and thus

Ramirez suffered no violation of his Sixth Amendment rights.

     “The primary component of standing is that the litigant

seeking action by the court have an injury in fact resulting from

the action which they seek to have the court adjudicate.”     United

States v. Shaw, 920 F.2d 1225, 1229 (5th Cir. 1991) (internal

quotations and citations omitted).   The standing requirement

ordinarily is satisfied when the person challenging a criminal

statute’s constitutionality has been prosecuted under the

statute.   Cf. Johnson v. City of Dallas, 61 F.3d 442, 444 (5th

Cir. 1999) (plaintiffs not convicted under ordinance lacked

standing to challenge the ordinance).

     Ramirez was prosecuted and sentenced under § 1326(b).

Accordingly, we reject the Government’s assertion that Ramirez

lacks standing to raise a facial challenge to § 1326(b).    Because


     **
       Ramirez also waived the right “to have facts that the law
makes essential to the punishment either (1) charged in the
indictment or (2) proven to a jury or (3) proved beyond a
reasonable doubt.” The Government neither cites nor relies on
this portion of the waiver in this appeal.
                           No. 05-41662
                                -3-

Ramirez concedes that he is not asserting an as-applied challenge

to § 1326(b), we do not address the Government’s assertion that

any such challenge is barred by Ramirez’s unconditional guilty

plea and by the appeal-waiver provision of Ramirez’s plea

agreement.

     Ramirez’s constitutional challenge is foreclosed by

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

Although Ramirez 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).   Ramirez 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.
