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. 05-40612 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CUDBERTO CONSTANTINO-GARRIDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-1027-ALL --------------------

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

PER CURIAM:*

Cudberto Constantino-Garrido appeals his conviction for

illegal reentry by an alien after deportation. He argues that

the provisions of

(b) are unconstitutional in

light of Apprendi v. New Jersey,

(2000).

Constantino’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Constantino contends that Almendarez-Torres

was incorrectly decided and that a majority of the Supreme Court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40612 -2-

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,

(5th Cir.), cert. denied,

(2005).

Constantino 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.

Accordingly, the judgment of the district court is AFFIRMED.