                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40962
                        Conference Calendar



UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

versus

JAIME MORIN-GARCIA, also known as
Juan Morales-Garcia,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:05-CR-120-1
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jaime Morin-Garcia pleaded guilty to being found in

the United States after deportation and was sentenced to 46

months of imprisonment and three years of supervised release.

Morin-Garcia argues that the felony and aggravated felony

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

Specifically, he argues that the viability of Almendarez-Torres

v. United States, 523 U.S. 224 (1998), is in doubt in light of

later Supreme Court cases such as Apprendi v. New Jersey, 530


     *
       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this opinion should not be published and is not precedent except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. 05-40962
                                 -2-

U.S. 466 (2000), and Shepard v. United States, 125 S. Ct. 1254

(2005).    We need not decide the applicability of the waiver

provisions in the plea agreement because the issue that Morin-

Garcia raises is foreclosed.

     Morin-Garcia’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States.    Although Morin-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, 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).    Morin-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.
