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. 05-40241 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VLADIMIR SALGADO-BRITO, also known as Pablo Alvarez-Gutierrez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-551-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Pursuant to a written agreement, Vladimir Salgado-Brito

pleaded guilty to illegal reentry after removal from the United

States in violation of

(a), (b). He appeals his

conviction and sentence of 33 months of imprisonment.

Salgado-Brito argues for the first time on appeal that the

“felony” and “aggravated felony” provisions of § 1326(b) are

unconstitutional. We need not decide the applicability of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40241 -2-

waiver in this case because the issue that Salgado-Brito raises

is foreclosed.

Salgado-Brito’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Salgado-Brito 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). Salgado-

Brito 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 conviction and sentence are AFFIRMED.