                                                       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. 05-41083
                        Conference Calendar



UNITED STATES OF AMERCIA,

                                    Plaintiff-Appellee,

versus

ARTURO GUITIERREZ-TOVAR,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-987-1
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Arturo Gutierrez-Tovar (Gutierrez) appeals his guilty plea

conviction for illegally reentering the United States after

having been convicted of an aggravated felony and deported.        As

Gutierrez acknowledges, his challenge to the district court’s

eight-level sentence enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C) is foreclosed by circuit precedent.      See United

States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997);

see also United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.



     *
       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this opinion should not be published and is not precedent except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. 05-41083
                                 -2-

2001).    Gutierrez cites no authority affecting the binding

precedential value of Rivera and Hinojosa-Lopez.

     Gutierrez also argues that the “felony” and “aggravated

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

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).    Gutierrez’s constitutional challenge is foreclosed by

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

Although Gutierrez 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).

Gutierrez 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.
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