               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 06-41249
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SELVIN ANTONIO GUTIERREZ-OLIVA,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:06-CR-577-ALL
                        --------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Selvin Antonio Gutierrez-Oliva appeals his guilty-plea

conviction of, and sentence for, violating 8 U.S.C. § 1326 by

being found in the United States without permission after

deportation.   Gutierrez-Oliva preserves for further review his

contention that his sentence is unreasonable because this court’s

post-Booker** rulings have effectively reinstated the mandatory

Sentencing Guideline regime condemned in Booker.   Gutierrez-Oliva

concedes that his argument is foreclosed by United States v.

     *
       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this opinion should not be published and is not precedent except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.
     **
          United States v. Booker, 543 U.S. 220 (2005).
                           No. 06-41249
                                -2-

Mares, 402 F.3d 511 (5th Cir. 2005), and its progeny, which have

outlined this court’s methodology for reviewing sentences for

reasonableness.

     Gutierrez-Oliva further argues, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the 41-month term of

imprisonment imposed in his case exceeds the statutory maximum

sentence allowed for the § 1326(a) offense charged in his

indictment.   He challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must

be found by a jury.

     Gutierrez-Oliva’s 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. 2005).   Gutierrez-Oliva 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.   The judgment of the district court is AFFIRMED.
