United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 14, 2005

Charles R. Fulbruge III Clerk No. 05-40294 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO PACHECO-SALINAS, also known as Rodolfo Ramos,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-847-ALL --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Fernando Pacheco-Salinas is appealing his guilty-plea

conviction of being found in the United States after previous

deportation, in violation of

(a) and (b). He

argues that the “felony” and “aggravated felony” provisions of

(b)(1) and (2) are unconstitutional.

This appeal is not barred by the language of his plea

agreement. Pacheco’s constitutional challenge, however, is

foreclosed by Almendarez-Torres v. United States,

,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40294 -2-

235 (1998). Although Pacheco 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,

(2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez,

(5th Cir.),

cert. denied,

(2005). Pacheco 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.

The judgment of the district court is AFFIRMED.