                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-40082
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FRANCISCO MERAZ-LARES,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:05-CR-573
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Francisco Meraz-Lares (Meraz) pleaded guilty to an

indictment charging him with being found illegally in the United

States following a previous deportation.   Meraz contends that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) & (2) are unconstitutional, in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000), because those provisions treat

prior convictions as sentencing factors rather than elements of

an offense.    The Government contends that Meraz waived the right


     *
       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this opinion should not be published and is not precedent except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. 06-40082
                                -2-

to assert this question in his plea agreement.   We assume,

arguendo only, that the waiver does not bar the instant appeal.

     Meraz’ 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).    Meraz

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.
