                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-41155
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS FRANCO-VILLAGRAN,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-293-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Carlos Franco-Villagran (Franco) appeals his sentence

for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b).

Franco challenges the constitutionality of § 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 in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Government argues that the waiver provision in Franco’s plea

agreement precludes his attack on the constitutionality of



     *
       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this opinion should not be published and is not precedent except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. 05-41155
                                -2-

§ 1326(b) and that, as a result of the waiver, Franco lacks

standing to challenge the constitutionality of § 1326(b).    We

assume, arguendo only, that the waiver does not bar the instant

appeal.

     Franco’s constitutional challenge is foreclosed by

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

Although Franco 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).   Franco

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.
