                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40451
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RODOLFO PATINO-TARIN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-803-ALL
                      --------------------

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

PER CURIAM:*

     Rodolfo Patino-Tarin appeals from his guilty-plea conviction

and sentence for being found in the United States after previous

deportation.   Patino-Tarin argues that the district court erred

by imposing a 16-level adjustment under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for burglary

of a habitation.   Because he objected on this basis in the

district court, this issue is reviewed de novo.    United States v.

Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc).


     *
       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this opinion should not be published and is not precedent except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. 05-40451
                               -2-

Patino-Tarin’s argument is unavailing.     See United States v.

Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1398 (2006).

     Patino-Tarin’s constitutional challenge is foreclosed by

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

Although Patino-Tarin 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

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).     Patino-Tarin 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 district court’s judgment is AFFIRMED.
