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. 05-40193 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS OVIEDO-MEDINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1615-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Juan Carlos Oviedo-Medina appeals his sentence under

for illegal reentry into the United States after

having been deported. Oviedo-Medina asserts that the district

court erred in concluding that his prior state felony conviction

for simple possession of cocaine was an “aggravated felony” for

purposes of § 1326(b). Oviedo-Medina’s argument is foreclosed by

circuit precedent. See United States v. Rivera,

,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40193 -2-

312-13 (5th Cir. 2001); United States v. Hinojosa-Lopez,

(5th Cir. 1997).

Oviedo-Medina also argues that the “felony” and “aggravated

felony” provisions of § 1326(b) are unconstitutional. This

challenge is foreclosed by Almendarez-Torres v. United States,

(1998). Although Oviedo-Medina 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). Oviedo-

Medina 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.