                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41249
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FRANCISCO GARZA-VILLARREAL,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 5:05-CR-300
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Francisco Garza-Villarreal appeals his guilty plea

conviction and sentence for having been found present in the

United States after a previous deportation following a felony

conviction.    He argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional on their face and as applied in this case 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this opinion should not be published and is not precedent except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. 05-41249
                                -2-

     Garza-Villarreal’s constitutional challenge to § 1326(b)

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

224, 235 (1998).   Although Garza-Villarreal 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).   Garza-Villarreal 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.
