                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 28, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-40031
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN BLANCO-HERNANDEZ,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-448-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Juan Blanco-Hernandez appeals his conviction and the 75-

month sentence imposed following entry of his guilty plea to one

count of being found illegally in the United States subsequent to

deportation and a conviction for an aggravated felony.       Blanco-

Hernandez contends that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional.       Because

the Government does not seek to enforce Blanco-Hernandez’s appeal

waiver, it is not binding.    See United States v. Story, 439 F.3d

226, 231 (5th Cir. 2006).


     *
       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this opinion should not be published and is not precedent except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. 06-40031
                               -2-

     Blanco-Hernandez’s constitutional challenge is foreclosed by

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

Although Blanco-Hernandez 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).   Blanco-Hernandez 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 judgment of the district court is AFFIRMED.
