                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 13, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41402
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MANUEL MORENO-MERCADO,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-304-ALL
                      --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Manuel Moreno-Mercado (Moreno) appeals the sentence imposed

following his guilty-plea conviction of being knowingly and

unlawfully present in the United States after previously having

been denied admission, excluded, deported, or removed subsequent

to an aggravated felony conviction, in violation of 8 U.S.C.

§ 1326(a) and (b).   Moreno argues that the district court erred

in enhancing his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

based on his prior Texas robbery conviction under TEX. PENAL CODE



     *
       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this opinion should not be published and is not precedent except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. 05-41402
                                   -2-

ANN. § 29.02 (Vernon 1999).    He also argues that the enhancement

provisions of 8 U.S.C. § 1326(b) are unconstitutional.

     Robbery is expressly listed as a crime of violence in the

commentary to § 2L1.2.    See § 2L1.2, cmt. n.1(b)(iii).   This

court recently held in United States v. Santiesteban-Hernandez,

469 F.3d 376, 378-82 (5th Cir. 2006), that the Texas robbery

statute, § 29.02, qualifies as the enumerated offense “robbery”

for § 2L1.2 purposes.    Moreno’s arguments are almost identical to

the arguments made in Santiesteban-Hernandez, 469 F.3d at 378-82,

and therefore do not provide a basis for relief.

     In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

subsequent Supreme Court precedent, Moreno 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.      Moreno’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).     Although he 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).     Moreno properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit
                          No. 05-41402
                               -3-

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

review.

     The district court’s judgment is AFFIRMED.
