                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41187
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERTO RODRIGUEZ-LOPEZ,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:05-CR-325-ALL
                        --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Roberto Rodriguez-Lopez (Rodriguez) appeals his guilty-plea

conviction and sentence for being unlawfully found in the United

States after deportation, having previously been convicted of an

aggravated felony.   He argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Rodriguez contends that § 1326(b) must be severed from

the remainder of the statute and his conviction reduced to one

under § 1326(a).   The Government argues that the waiver

     *
       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this opinion should not be published and is not precedent except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. 05-41187
                               -2-

provisions in Rodriguez’s plea agreement preclude his attack on

the constitutionality of § 1326(b) and that he lacks standing to

challenge the constitutionality of § 1326(b).   We assume,

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

     However, Rodriguez cannot succeed in this appeal because his

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).   Although Rodriguez

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).   Rodriguez 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.
