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. 05-40619 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AVELINO RODRIGUEZ-YANEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2107-ALL --------------------

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

PER CURIAM:*

Avelino Rodriguez-Yanez appeals his guilty-plea conviction

and sentence for being illegally present in the United States

following removal. Rodriguez argues that the district court

erred by finding that his prior Texas felony conviction for

burglary of a habitation was a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). This court has rejected that argument in

our recent decision in United States v. Garcia-Mendez,

(5th Cir. 2005).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40619 -2-

Rodriguez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Rodriguez 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). Rodriguez 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.