                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                         March 15, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                             No. 06-40589
                           Summary Calendar


UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

JAVIER HERNANDEZ-PENALOSA,

                                            Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                         (2:05-CR-663-ALL)
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant       Javier   Hernandez-Penalosa      appeals      his

guilty-plea conviction of, and sentence for, violating 8 U.S.C. §

1326 by   being   found   in    the   United   States   without    permission

following deportation.

     Hernandez-Penalosa        challenges    his   sentence,   arguing     that

because the district court did not state that the Sentencing

Guidelines are advisory, did not consider his mitigating evidence,

and imposed a sentence identical to that which would have been

imposed under the mandatory Guidelines scheme, the sentencing court

     *
       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this opinion should not be published and is not precedent except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.
effectively treated the Guidelines as mandatory.                The government

seeks to enforce Hernandez-Penalosa’s sentencing waiver of appeal.

The record shows that the waiver was knowing and voluntary and,

based on the plain language of the agreement, applies to the

circumstances at hand.        See United States v. Bond, 414 F.3d 542,

544 (5th Cir. 2005).         Accordingly, we do not address Hernandez-

Penalosa’s sentencing challenge.             See id. at 546.

      Hernandez-Penalosa argues that, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), his 57-month term of imprisonment

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, which must be found by a jury.                Hernandez-

Penalosa’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).              Hernandez-Penalosa properly

concedes      that     his   argument        is   foreclosed    in     light   of

Almendarez-Torres and circuit precedent, and that he raises it here



                                         2
solely   to   preserve   it   for   further   review.   We   GRANT   the

government’s unopposed motion for summary affirmance of this issue.

     The government moved for dismissal of the appeal as barred by

Hernandez-Penalosa’s waiver of appeal.         As the challenge to the

constitutionality of § 1326(b) is arguably not waived, the motion

to dismiss is DENIED.     As it is clear, however, that Hernandez-

Penalosa’s appeal of his sentence is barred by his waiver and that

his sentence should be affirmed, the government’s motion for an

extension of time to file a brief is DENIED as unnecessary.          For

the foregoing reasons Hernandez-Penalosa’s sentence is

AFFIRMED.




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