                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                June 1, 2007
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 06-40646
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ALCIDES ENRIQUE SIERRA-HERNANDEZ,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 5:05-CR-2376
                        --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Alcides Enrique Sierra-Hernandez (Sierra) appeals his

guilty-plea conviction and 15-month sentence for being found in

the United States after being removed, in violation of 8 U.S.C.

§ 1326.   Sierra contends that the district court erred in

imposing a sentencing enhancement for his prior conviction for

possession of cocaine, in light of Lopez v. Gonzales, 127 S. Ct.

625 (2006).    Because Sierra has completed the confinement portion

of his sentence, any argument that the prison term should be


     *
       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this opinion should not be published and is not precedent except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. 06-40646
                                -2-

reduced is moot and the only portion of the sentence remaining

for consideration is his term of supervised release.    As the

Government notes, however, Sierra has been deported.    Because

Sierra would is barred from returning to the United States, and

because there is no indication that Sierra has waived his right

to be present for resentencing, his challenge to the validity of

his sentence is moot.   See United States v. Rosenbaum-Alanis, ___

F.3d ___, 2007 WL 926832, at *2 (5th Cir. March 29, 2007)(No. 05-

41400).   The appeal is therefore DISMISSED as to this ground.

     Sierra also argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that the 15-month term of imprisonment imposed

in his case exceeds the statutory maximum sentence allowed for

the § 1326(a) offense charged in his indictment.   He 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 be found by a jury.

Sierra’s constitutional challenge is foreclosed by Almendarez-

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

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).   Sierra properly concedes that his

argument is foreclosed in light of Almendarez-Torres and
                           No. 06-40646
                                -3-

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

further review.   His conviction is thus AFFIRMED.
