                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40648
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAIME HERNANDEZ-GARCIA, also known as Pablo Turbiates-Furtunas,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-1083-ALL
                       --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Jaime Hernandez-Garcia appeals his guilty-plea conviction

and sentence for being illegally present in the United States

following removal.   Hernandez argues that the district court

erred by finding that his prior Texas felony conviction for

burglary of a habitation was a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).   In United States v. Garcia-Mendez,

420 F.3d 454, 456-57 (5th Cir. 2005), this court held that a

prior Texas conviction for burglary of a habitation was a prior


     *
       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this opinion should not be published and is not precedent except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. 05-40648
                                -2-
conviction for a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because it was equivalent to the enumerated

offense of burglary of a dwelling.   Hernandez asserts that

Garcia-Mendez is inapplicable to the present case because the

issue in that case was reviewed for plain error and because this

court did not apply the categorical analysis mandated by Taylor

v. United States, 495 U.S. 575 (1990).    While the review of this

issue in Garcia-Mendez was for plain error, this court clearly

held that a Texas conviction for burglary of a habitation was a

conviction for a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).   See 420 F.3d at 456-57.    Hernandez’s

argument that this court did not properly apply the categorical

analysis of Taylor in Garcia-Mendez is nothing more than an

argument that Garcia-Mendez was incorrectly decided, and is

unavailing.   See Burge v. Parish of St. Tammany, 187 F.3d 452,

466 (5th Cir. 1999) (applying prior panel rule).

     Hernandez’s constitutional challenge is foreclosed by

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

Although Hernandez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 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 properly concedes
                          No. 05-40648
                               -3-
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.
