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

                            No. 05-41507
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CAYETANO BRIONES, also known as Jose Gonzalez-Hernandez, also
known as Javier Fuentes-Arriaga,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-507-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Cayetano Briones appeals following his guilty plea

conviction for attempted illegal reentry into the United States.

Briones 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).        Because

the Government has not invoked the waiver provisions in the plea




     *
      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this opinion should not be published and is not precedent except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. 05-41507
                                 -2-

agreement, the waiver does not bind Briones.    See United States

v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).

     Briones’s constitutional challenge to § 1326(b) is

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

235 (1998).   Although Briones 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).   Briones 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.

     The judgment of the district court is AFFIRMED.
