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. 05-40705 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RITO ARTURO SANCHEZ-POLANCO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-701-ALL --------------------

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

PER CURIAM:*

Rito Arturo Sanchez-Polanco (Sanchez) pleaded guilty to one

count of reentering the United States without permission after

having been deported. Sanchez’s constitutional challenge to

(b) is foreclosed by Almendarez-Torres v. United

States,

(1998). Although Sanchez 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40705 -2-

repeatedly rejected such arguments on the basis that Almendarez-

Torres remains binding. See United States v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005).

Sanchez 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.