                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 25, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 05-41542
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE MARCO ANTONIO FUENTE-AGUILERA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-906-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jose Marco Antonio Fuente-Aguilera 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.   He argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that the 40-month term of imprisonment imposed

in his case exceeds the statutory maximum sentence allowed for

the offense charged in his indictment.    He challenges the

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


     *
       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this opinion should not be published and is not precedent except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. 05-41542
                                -2-

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

     Fuente-Aguilera’s constitutional challenge is foreclosed by

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

Although Fuente-Aguilera 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).   Fuente-Aguilera 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.
