                                                       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. 05-20650
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MOISES LUNA, also known as Luna Moises, also known as Moses Luna,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:05-CR-53-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Moises Luna appeals his sentence following his guilty plea

conviction for illegal reentry after previous deportation.        Luna

contends that the district court erred in treating his Texas

burglary of a habitation conviction as a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii).   As Luna concedes, his argument

has been rejected by this court.   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this opinion should not be published and is not precedent except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. 05-20650
                                -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).

     Luna also challenges, in light of Apprendi v. New Jersey,

530 U.S. 466 (2000), the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than as elements of the

offense that must be found by a jury.     This issue is foreclosed

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

Although Luna 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).     Luna

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.
