                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 14, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41805
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROLANDO GARCIA-REYES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-104-ALL
                       --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Rolando Garcia-Reyes appeals his guilty-plea conviction and

sentence for possession with intent to distribute 686.9 kilograms

of marijuana in violation of 21 U.S.C. § 841.   Garcia-Reyes

argues that the district court erred by imposing a career

offender enhancement under U.S.S.G. § 4B1.1 based upon the

classification of his Texas convictions for burglary of a

habitation as crimes of violence.

     As Garcia-Reyes concedes, his argument is foreclosed by

United States v. Garcia-Mendez, 420 F.3d 454, 455-57 (5th Cir.

     *
       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this opinion should not be published and is not precedent except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. 05-41805
                                -2-

2005), cert. denied, 126 S. Ct. 1398 (2006).   Although he argues

that Garcia-Mendez was incorrectly decided, Garcia-Mendez remains

binding.   See United States v. Stone, 306 F.3d 241, 243 (5th Cir.

2002).

     For the first time on appeal, Garcia-Reyes argues that the

penalty scheme in 21 U.S.C. § 841(a) and (b) is unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).   Garcia-

Reyes concedes that his argument is foreclosed by United States

v. Slaughter, 238 F.3d 580, 582-84 (5th Cir. 2000), but he states

that he is raising the issue in order to preserve it for Supreme

Court review.   In Slaughter, 238 F.3d at 582, we held that there

is “nothing in the Supreme Court decision in Apprendi which would

permit [this court] to conclude that 21 U.S.C. §§ 841(a) and (b),

846, and 860(a) are unconstitutional on their face.”   Garcia-

Reyes’s argument is foreclosed, as he so concedes.   Accordingly,

the district court’s judgment is AFFIRMED.
