                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 25, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-41754
                           Summary Calendar


UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

FABIAN CASTILLO-RAMIREZ

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 5:05-CR-1291-ALL
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Fabian Castillo-Ramirez (Castillo) appeals his guilty-plea

conviction and sentence for being found unlawfully in the United

States following removal.    Castillo argues that the district

court misapplied the Sentencing Guidelines by characterizing his

state felony conviction for possession of a controlled substance

as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).

     Because Castillo has completed the confinement portion of

his sentence, any argument that the term of incarceration should

be reduced is moot, and the only portion of the 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this opinion should not be published and is not precedent except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. 05-41754
                                 -2-

remaining for consideration is his term of supervised release.

Castillo, however, has been removed from the United States.

Because Castillo is barred from returning to the United States,

and there is no indication that he has waived his right to be

present for resentencing, Castillo’s challenge to the validity of

his sentence is moot.    See United States v. Rosenbaum-Alanis,

483 F.3d 381, 2007 WL 926832 at *2 (5th Cir. 2007).   Therefore,

the appeal is DISMISSED as to Castillo’s sentence.

     For the first time on appeal, Castillo also challenges the

constitutionality of 8 U.S.C. § 1326(b) in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).   Castillo’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Castillo 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).   Castillo 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.   Accordingly, Castillo’s conviction is AFFIRMED.
