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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-20959
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

DENNIS ALEXIA LANZA-GUILLEN,
also known as Dennis Lanza,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:05-CR-83-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Dennis Alexia Lanza-Guillen appeals his guilty-plea

conviction and 57-month sentence for violating 8 U.S.C. § 1326(a)

and (b)(2) by being found in the United States without

permission, following deportation.   Lanza-Guillen challenges as

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

aggravated felony convictions as sentencing factors rather than

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



     *
       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this opinion should not be published and is not precedent except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. 05-20959
                               -2-

     Lanza-Guillen’s constitutional challenge is foreclosed by

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

Although Lanza-Guillen 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).   Lanza-Guillen 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.
