                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 25, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20929
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERTO RAMIREZ-GUERRERO, also known as Roberto Ramirez,
also known as Jose Isreal Herrera, also known as Roberto
Rodrigo Ramirez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:05-CR-118-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Roberto Ramirez-Guerrero pleaded guilty to one count of

unlawfully reentering the United States after having been removed

subsequent to an aggravated felony conviction in violation of

8 U.S.C. § 1326.   In his sole point of error on appeal, Ramirez-

Guerrero challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must



     *
       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this opinion should not be published and is not precedent except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. 05-20929
                                -2-

be found by a jury in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).

     Ramirez-Guerrero’s constitutional challenge is foreclosed by

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

Although Ramirez-Guerrero 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).

Ramirez-Guerrero properly concedes that his argument is

foreclosed in light of Almendarez-Torres, but he raises it here

to preserve it for further review.

     AFFIRMED.
