                                                       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. 05-41783
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ADOLFO CARMON-NIEVES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:05-CR-381-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Adolfo Carmon-Nieves (Carmon) challenges his guilty-plea

conviction and 27-month sentence for illegal reentry.      Carmon

contends 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).

     Carmon’s constitutional challenge is foreclosed by

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

Although Carmon contends that Almendarez-Torres was incorrectly


     *
       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this opinion should not be published and is not precedent except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. 05-41783
                                -2-

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).   Carmon

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.
