                                                       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. 05-40946
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GAUDENCIO VILLA-GUTIERREZ,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-1081-1
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Gaudencio Villa-Gutierrez pleaded guilty to being found in

the United States after deportation and was sentenced to

30 months of imprisonment and two years of supervised release.

     Villa-Gutierrez argues that the district court erred in

treating his prior state conviction for attempted possession of

narcotic drugs as an aggravated felony.   He concedes that his

argument is foreclosed by current Fifth Circuit law, citing

United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001) and

United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (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this opinion should not be published and is not precedent except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. 05-40946
                                  -2-

1997).   Thus, the district court did not err in applying the

eight-level adjustment to his offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C) based on his prior state felony drug conviction.

United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

Jerome v. United States, 318 U.S. 101 (1943) does not affect the

binding precedential value of Rivera and Hinojosa-Lopez.

     Villa-Gutierrez 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.

     Villa-Gutierrez’s constitutional challenge is foreclosed by

Almendarez-Torres.   Although Villa-Gutierrez 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).    Villa-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.
