                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 2, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 05-51689
                           Summary Calendar


UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

BENITO MENA-SEGOVIANO, also known as Angel Perez

                      Defendant - Appellant

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                      USDC No. 3:05-CR-1118-ALL
                         --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Benito Mena-Segoviano appeals from his guilty-plea

conviction for illegal reentry into the United States.       He argues

that the district court erred by departing upwardly from the

advisory Sentencing Guidelines based upon his criminal history.

As Mena-Segoviano concedes, the departure is reviewed only for

plain error because he did not object on this basis in district

court.    See United States v. Jones, 444 F.3d 430, 436 (5th Cir.

2006).    Because Mena-Segoviano has failed to show that the

district court’s decision to depart upwardly was clear or

     *
       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this opinion should not be published and is not precedent except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. 05-51689
                                -2-

obvious, he does not warrant relief on this issue.   See United

States v. Olano, 507 U.S. 725, 734 (1993).

     Mena-Segoviano also challenges the constitutionality of 8

U.S.C. § 1326(b).   His constitutional challenge is foreclosed by

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

Although Mena-Segoviano 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).   Mena-Segoviano properly

concedes that his argument is foreclosed by Almendarez-Torres and

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

for further review.

     AFFIRMED.
