                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 14, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40523
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

HERIBERTO GARCIA-MESA,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 7:04-CR-1094-ALL
                        --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Heriberto Garcia-Mesa (Garcia) appeals his conviction and

the 37-month sentence imposed following his guilty plea to being

a previously deported alien unlawfully present in the United

States.   Garcia’s constitutional challenge to 8 U.S.C. § 1326(b)

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998).   Although Garcia 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

     *
       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this opinion should not be published and is not precedent except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. 05-40523
                               -2-

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).   Garcia 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.

     AFFIRMED.
