                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-51144
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARTIN NUNEZ-GONZALEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:04-CR-2306-ALL
                       --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Martin Nunez-Gonzalez appeals his guilty-plea conviction of,

and sentence for, violating 8 U.S.C. § 1326 by being found in the

United States without permission after deportation.     Nunez-

Gonzalez’s motion for appointment of substitute counsel is denied

because Nunez-Gonzalez has not shown “a conflict of interest or

other most pressing circumstances or that the interests of

justice otherwise require relief of counsel.”    Fifth Circuit Plan

under the Criminal Justice Act § 5(B).



     *
       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this opinion should not be published and is not precedent except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. 05-51144
                                -2-

     Nunez-Gonzalez argues, in light of Apprendi v. New Jersey,

530 U.S. 466 (2000), that the 37-month term of imprisonment

imposed in his case exceeds the statutory maximum sentence

allowed for the § 1326(a) offense charged in his indictment.      He

challenges the constitutionality of § 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.

     Nunez-Gonzalez’s constitutional challenge is foreclosed by

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

Although he 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).     Nunez-

Gonzalez 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.   Accordingly, the

Government’s motion for summary affirmance is granted.

     MOTION FOR APPOINTMENT OF SUBSTITUTE COUNSEL DENIED; MOTION

FOR SUMMARY AFFIRMANCE GRANTED; AFFIRMED.
