                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 9, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40131
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RICARDO GARCIA ALMANZAN,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-742-ALL
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ricardo Garcia Almanzan appeals his guilty-plea conviction

of being an alien unlawfully found in the United States after

deportation, having previously been convicted of an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b).

     Almanzan argues that the felony and aggravated felony

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

He concedes that this issue is foreclosed but seeks to preserve

review by the Supreme Court.


     *
       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this opinion should not be published and is not precedent except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. 05-40131
                                -2-

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

(1998), held that a prior conviction is a sentencing factor under

8 U.S.C. § 1326(b)(2) and not a separate criminal offense.

Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000), did not

overrule Almendarez-Torres.   See United States v. Rivera, 265

F.3d 310, 312 (5th Cir. 2001).   This argument is foreclosed.

Rivera, 265 F.3d at 312.

     The judgment of the district court is AFFIRMED.
