                                                         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. 05-40963
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE SANTIAGO SANCHEZ-HERRERA,
                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:05-CR-144-ALL
                         --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jose Santiago Sanchez-Herrera appeals his conviction and

sentence for illegal reentry into the United States after

deportation following a conviction for an aggravated felony.           The

Government seeks to dismiss Sanchez-Herrera’s appeal as barred by

the appellate waiver provision in his plea agreement.

     Sanchez-Herrera’s conviction was pursuant to a written plea

agreement.     In the agreement, Sanchez-Herrera waived the right to

have facts that the law makes essential to the punishment either

charged in the indictment, proven to a jury, or proven beyond a

     *
       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this opinion should not be published and is not precedent except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. 05-40963
                                -2-

reasonable doubt.   Sanchez-Herrera also waived the right to

appeal his sentence, but reserved the right to appeal a sentence

in excess of the statutory maximum sentence.   We assume, arguendo

only, that the waiver does not bar the instant appeal.

     Sanchez-Herrera cannot succeed in this appeal, however,

because his constitutional challenge is foreclosed by

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

Although Sanchez-Herrera 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).   Sanchez-Herrera 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.
