                                                        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, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-41669
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE MANUEL RODRIGUEZ-FALCON, also known as Manuel
Jesus Rodriguez-Falcon, also known as Manuel Rodriguez-Falcon,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-999-ALL
                      --------------------

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jose Manuel Rodriguez-Falcon (Rodriguez) pleaded guilty

without a plea agreement to unlawfully attempting to enter the

United States following deportation.   At sentencing, Rodriguez

received a 16-level sentencing enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(i) based on a previous Texas state conviction

for delivery of heroin and was sentenced to 60 months of

imprisonment.   Rodriguez contends that the district court

committed reversible plain error when it enhanced his sentence


     *
       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this opinion should not be published and is not precedent except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. 05-41669
                                  -2-

under § 2L1.2(b)(1)(A)(i).    We reject the Government’s contention

that Rodriguez “invited,” and thus waived this argument.     Defense

counsel’s remarks at sentencing did not rise to the level of a

concession that the enhancement was proper.

     Under plain error review, “the defendant has the burden to

show that there is clear or obvious error and that it affects

substantial rights.”     United States v. Alaniz-Alaniz, 38 F.3d

788, 791 (5th Cir. 1994).    If the defendant carries that burden,

this court has the discretion to correct the error if it

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.”     Id. (quotation marks and citation

omitted).

     In order to show that the enhancement of his sentence

affected his substantial rights, Rodriguez must have at least

argued that his prior conduct did not constitute drug

trafficking.   See United States v. Ochoa-Cruz, 442 F.3d 865, 867

(5th Cir. 2006).     Because he does not argue that the enhancement

under § 2L1.2(b)(1)(A)(i) was ultimately wrong, Rodriguez has not

shown plain error.     Alaniz-Alaniz, 38 F.3d at 791.

     Rodriguez also challenges the constitutionality of

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than as elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).    Rodriguez’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,
                            No. 05-41669
                                 -3-

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.
