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. 05-40523 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERIBERTO GARCIA-MESA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-1094-ALL --------------------

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

PER CURIAM:*

Heriberto Garcia-Mesa (Garcia) appeals his conviction and

the 37-month sentence imposed following his guilty plea to being

a previously deported alien unlawfully present in the United

States. Garcia’s constitutional challenge to

(b)

is foreclosed by Almendarez-Torres v. United States,

(1998). Although Garcia 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40523 -2-

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez,

(5th Cir.),

cert. denied,

(2005). Garcia 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.