                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 4, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-20060
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN ANTONIO LOPEZ-VASQUEZ, also known as Juan Antonio Lopez,
also known as Juan Antonio Lopez Vasquez, also known as
Orlando Calderon,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:05-CR-282
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Juan Antonio Lopez-Vasquez appeals from his guilty plea

conviction and sentence for illegal reentry after deportation and

following a conviction for an aggravated felony in violation of

8 U.S.C. § 1326.   Lopez-Vasquez contends that his conviction for

simple possession of a controlled substance should not have been

treated as an “aggravated felony” for purposes of the eight-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(C).   “Because [Lopez-

Vasquez] has completed the confinement portion of his sentence,

     *
       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this opinion should not be published and is not precedent except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. 06-20060
                                 -2-

any argument that the prison term should be reduced is moot and

the only portion of the sentence remaining for consideration is

the defendant’s term of supervised release.”   United States v.

Rosenbaum-Alanis, __ F.3d __, No. 05-41400, 2007 WL 926832, at *1

(5th Cir. Mar. 29, 2007).   Counsel for Lopez-Vasquez indicates

that Lopez-Vasquez presumably has been deported.   Because he “is

legally unable, without permission of the Attorney General, to

reenter the United States to be present for a resentencing

proceeding

as required by [Federal Rule of Criminal Procedure] 43, there is

no relief we are able to grant him and his appeal is moot.”     Id.

at *2.

     Lopez-Vasquez argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   His constitutional challenge is foreclosed by

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

Although Lopez-Vasquez 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).   Lopez-Vasquez properly concedes that

his argument is foreclosed by Almendarez-Torres and circuit
                          No. 06-20060
                               -3-

precedent, but he raises it here solely to preserve it for

further review.

     Accordingly, Lopez-Vasquez’s appeal of his sentence is

DISMISSED AS MOOT and his conviction is AFFIRMED.
