                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 25, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-41272
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GUSTAVO SANCHEZ-RIVERA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-341-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Gustavo Sanchez-Rivera pleaded guilty to one charge of

attempted illegal reentry into the United States and was

sentenced to serve 70 months in prison and a three-year term of

supervised release.   Sanchez-Rivera argues that the district

court erred by concluding that his prior conviction for burglary

of a habitation constituted a crime of violence and by assessing

a 16-level adjustment for this conviction.      This argument is, as

Sanchez-Rivera concedes, foreclosed.     See United States v.

Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006), cert. denied,

     *
       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this opinion should not be published and is not precedent except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. 05-41272
                                 -2-

2006 WL 2094539 (U.S. Oct. 2, 2006) (No. 06-5473); United States

v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1398 (2006).

     Sanchez-Rivera also challenges the constitutionality of

8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated

felony convictions as sentencing factors rather than elements of

the offense that must be found by a jury in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).   Sanchez-Rivera’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Sanchez-Rivera 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, 530 U.S. 466 (2000), 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).   Sanchez-

Rivera 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.

     Sanchez-Rivera has shown no error in connection with his

conviction or sentence.   Accordingly, the judgment of the

district court is AFFIRMED.
