                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        January 25, 2007

                                                                  Charles R. Fulbruge III
                                No. 06-40029                              Clerk
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

LUIS OLVERA-PALACIOS,

                                           Defendant-Appellant.


                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           No. 1:05-CR-746
                        --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

      Louis Olvera-Palacios appeals the sentence imposed following

his guilty-plea conviction of being an alien unlawfully found in

the United States after deportation after a conviction of an ag-

gravated felony.      He argues that the district court erroneously

calculated his criminal history points for purposes of applying the

sentencing guidelines by considering three prior, uncounseled, mis-

demeanor convictions of burglary of a vehicle, theft, and posses-


      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
sion of marihuana when assessing his criminal history points.   He

contends that his waiver of his right to counsel in those cases was

invalid because the district court failed to inform him that he was

entitled to court-appointed counsel if he could not afford to re-

tain counsel and failed to inform him of the punishment range for

each charge.

     The records pertaining to Olvera-Palacios’s misdemeanor con-

victions, however, show that he knowingly and voluntarily waived

his right to be represented by counsel when he entered his guilty

pleas.   See Iowa v. Tovar, 541 U.S. 77, 81 (2004).   Accordingly,

the district court did not misapply the sentencing guidelines by

using the prior convictions for purposes of determining a criminal

history score.

     Olvera-Palacios claims that, in light of Apprendi v. New Jer-

sey, 530 U.S. 466 (2000), his sentence exceeds the statutory maxi-

mum two-year term of imprisonment under 42 U.S.C. § 1326(b) because

he was sentenced under § 1326(b) on the basis of facts that were

not alleged in the indictment, admitted by him, or proved beyond a

reasonable doubt.   This constitutional challenge is foreclosed by

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

Olvera-Palacios contends that Almendarez-Torres was incorrectly de-

cided and that a majority of the Supreme Court would overrule it in

light of Apprendi, this court has repeatedly rejected such argu-

ments 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).     See also Rangel-Reyes v. United

States, 126 S. Ct. 2873 (2006).   Olvera-Palacios 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.
