                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-40901
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE ALBERTO PERALTA-BARAJAS,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-1005-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Alberto Peralta-Barajas (Peralta) appeals his guilty-

plea conviction and sentence for being found unlawfully in the

United States after deportation and after previously having been

convicted of an aggravated felony.   Peralta argues that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional.

     Peralta’s constitutional challenge is foreclosed by

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


     *
       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this opinion should not be published and is not precedent except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. 05-40901
                                -2-

Although Peralta 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).   Peralta 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.
