                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 16, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40897
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SANDRA ARREOLA-HERNANDEZ,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:06-CR-36-ALL
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Sandra Arreola-Hernandez appeals her guilty-plea conviction

and sentence for illegal reentry following deportation in

violation of 8 U.S.C. § 1326.   Arreola-Hernandez argues that the

district court misapplied the Sentencing Guidelines by

characterizing her state felony conviction for possession of a

controlled substance as an “aggravated felony” under U.S.S.G.

§ 2L1.2(b)(1)(C).

     Because Arreola-Hernandez has completed the confinement

portion of her sentence, any argument that the term of


     *
       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this opinion should not be published and is not precedent except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. 06-40897
                                 -2-

incarceration should be reduced is moot, and the only portion of

the sentence remaining for consideration is her term of

supervised release.   However, Arreola-Hernandez has been removed

from the United States.   Because Arreola-Hernandez is barred from

returning to the United States, and there is no indication that

she has waived her right to be present for resentencing, Arreola-

Hernandez’s challenge to the validity of her sentence is moot.

See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th

Cir. 2007).   The appeal is therefore DISMISSED as to Arreola-

Hernandez’s sentence.

     For the first time on appeal, Arreola-Hernandez also

challenges the constitutionality of 8 U.S.C. § 1326(b) in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).    Arreola-

Hernandez’s constitutional challenge is foreclosed by

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

Although Arreola-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).    Arreola-Hernandez properly concedes that

her argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but she raises it here to preserve it for

further review.   Accordingly, Arreola-Hernandez’s conviction is
                          No. 06-40897
                               -3-

AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF DENIED AS

UNNECESSARY.
