                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-41510
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

BENANCIO ALANIS-ZUNIGA,
                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-481-ALL
                      --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Benancio Alanis-Zuniga (Alanis-Zuniga) appeals his guilty

plea conviction and sentence for illegal reentry following

deportation in violation of 8 U.S.C. § 1326.     The Government does

not seek enforcement of Alanis-Zuniga’s waiver of appeal;

therefore, this court will not enforce it.      See United States v.

Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).

     For the first time on appeal, Alanis-Zuniga contends that

the “felony” and “aggravated felony” provisions of 8 U.S.C.



     *
       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this opinion should not be published and is not precedent except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. 04-41510
                                -2-

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000) and Shepard v. United States, 125 S.

Ct. 1254 (2005).   However, as Alanis-Zuniga concedes, this

argument is foreclosed.   See Almendarez-Torres v. United States,

523 U.S. 224, 247 (1998); United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000).

     Accordingly, the district court’s judgment is AFFIRMED.
