                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 20, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41139
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LEONEL HERNANDEZ-HERNANDEZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-277-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Leonel Hernandez-Hernandez (Hernandez) appeals his

conviction for illegal reentry, challenging the constitutionality

of 8 U.S.C. § 1326(b).   Hernandez argues that the “felony” and

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

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

466 (2000).

     The Government argues that the waiver provision in

Hernandez’s plea agreement precludes his attack on the


     *
       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this opinion should not be published and is not precedent except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. 05-41139
                                -2-

constitutionality of § 1326(b).   We assume, arguendo only, that

the waiver does not bar the instant appeal.

     Hernandez’s constitutional challenge is foreclosed by

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

Although Hernandez 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).

Hernandez 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.
