                                                       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. 06-10006
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ELEAZAR ESPINOZA-CAPUCHINA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:05-CR-152-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Eleazar Espinoza-Capuchina (Espinoza) appeals his guilty-

plea conviction and sentence of 77 months for illegal reentry

after removal from the United States, in violation of 8 U.S.C.

§ 1326(a), (b)(2) and 6 U.S.C. §§ 202, 557.    Espinoza argues that

his sentence is unreasonable and that § 1326(b) is

unconstitutional.

     This court reviews a sentence imposed by a district court

for reasonableness.    United States v. Duhon, 440 F.3d 711, 714

(5th Cir. 2006).    Espinoza contends that the district court

     *
       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this opinion should not be published and is not precedent except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. 06-10006
                                 -2-

imposed an unreasonable sentence in that it refused to consider

the sentencing disparity between his case and those of defendants

in districts which offer U.S.S.G. § 5K3.1 “early disposition”

programs.   This court recently rejected a nearly identical

argument, holding “[t]he refusal to factor in, when sentencing a

defendant, the sentencing disparity caused by early disposition

programs does not render a sentence unreasonable.”     United States

v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).

     Espinoza next argues that § 1326(b)’s treatment of prior

aggravated felony convictions as sentencing factors is

unconstitutional.    This constitutional challenge is foreclosed by

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

Although Espinoza 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).   Espinoza 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.
