United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41587 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR CRUZ-ALVARADO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-583-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Hector Cruz-Alvarado pleaded guilty to being found in

the United States after deportation and was sentenced to 46

months of imprisonment and two years of supervised release.

Cruz-Alvarado argues that the felony and aggravated felony

provisions of

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

Specifically, he argues that the viability of Almendarez-Torres

v. United States,

(1998), is in doubt in light of

later Supreme Court cases such as Apprendi v. New Jersey,

(2000), and Shepard 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41587 -2-

(2005). We need not decide the applicability of the waiver

provision in this case because the issue that Cruz-Alvarado

raises is foreclosed.

Cruz-Alvarado’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States. Although Cruz-Alvarado

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, 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). Cruz-Alvarado

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.