                                                       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. 05-41592
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROGELIO HERNANDEZ-ROMERO,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:05-CR-480-ALL
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Rogelio Hernandez-Romero (Hernandez) appeals his guilty-plea

conviction and sentence for unlawfully reentering the United

States after deportation, having previously been convicted of an

aggravated felony.   Hernandez was sentenced to 37 months of

imprisonment, to be followed by a three-year term of supervised

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

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

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this opinion should not be published and is not precedent except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. 05-41592
                                  -2-

     Hernandez’s conviction was pursuant to a plea agreement

which contained several waivers, including a waiver of the right

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

sentence above the statutory maximum or an upward departure from

the Sentencing Guidelines.    The Government argues that some of

the waiver provisions in Hernandez’s plea agreement preclude his

attack on the constitutionality of § 1326(b).    The Government

argues that as a result of the waivers, Hernandez lacks standing

to challenge the constitutionality of § 1326(b).

     We assume, arguendo only, that the waiver does not bar the

instant appeal.   Hernandez cannot succeed in this appeal because

his constitutional challenge is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998).     Although Hernandez

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).    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 Government’s motion to dismiss the appeal is DENIED, and

the ruling of the district court is AFFIRMED.
