                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 12, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41323
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GILBERTO BERMUDEZ-OLIVAREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-338-ALL
                      --------------------

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

PER CURIAM:*

     Gilberto Bermudez-Olivarez (Bermudez) appeals his conviction

and 37-month sentence for attempted illegal reentry by an alien

after deportation.   He argues that the sentencing provisions of 8

U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     Bermudez’s constitutional challenge is foreclosed by

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

Although Bermudez contends that Almendarez-Torres was incorrectly


     *
       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this opinion should not be published and is not precedent except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. 05-41323
                                -2-

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).   Bermudez

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.

     Accordingly, the judgment of the district court is AFFIRMED.
