                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41156
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ALFREDO PENA-GARZA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-192-ALL
                       --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Jose Alfredo Pena-Garza appeals his guilty plea conviction

and sentence for illegal reentry after having been previously

deported following a prior aggravated felony conviction.       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) and contends that his

challenge is not barred by the appeal-wavier provision in his

plea agreement.   The Government seeks enforcement of the waiver


     *
       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this opinion should not be published and is not precedent except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. 05-41156
                                -2-

provision.   We need not decide the applicability of the waiver

language in Pena-Garza’s plea agreement because the only issue

that Pena-Garza raises is foreclosed.

     Although Pena-Garza contends that Almendarez-Torres v.

United States, 523 U.S. 224 (1998), 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).    Pena-Garza 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.
