                                                       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. 05-41264
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE SAMUEL IPINA-IPINA,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-1015-ALL
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jose Samuel Ipina-Ipina pleaded guilty to being found in the

United States after previous deportation and was sentenced to 57

months of imprisonment and two years of supervised release.

Ipina-Ipina argues that the felony and aggravated felony

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

Specifically, he argues that the viability of Almendarez-Torres

v. United States, 523 U.S. 224 (1998), is in doubt in light of

later Supreme Court cases.



     *
       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this opinion should not be published and is not precedent except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. 05-41264
                                -2-

     Ipina-Ipina contends that the waiver provision contained in

paragraph 2 of his plea agreement does not bar his ability to

raise this issue on appeal.   The Government states that there was

no waiver of appellate rights in the plea agreement.    The

Government’s position is consistent with this court’s

interpretation of this waiver provision.    See United States v.

Reyes-Celestino, 443 F.3d 451, 452 (5th Cir. 2006).     Further,

because the Government does not seek to enforce the waiver in

this case, it will not be considered.     See United States v. Lang,

440 F.3d 212, 213 (5th Cir. 2006).

     Ipina-Ipina’s constitutional challenge is foreclosed by

Almendarez-Torres.   Although Ipina-Ipina 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).      Ipina-Ipina

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.
