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. 05-40372 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL RODRIGUEZ-MERCADO, also known as Miguel Villafranco-Ponce,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-973-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Miguel Rodriguez-Mercado appeals his guilty-plea conviction

for being an alien unlawfully found in the United States after

deportation, having previously been convicted of an aggravated

felony, in violation of

(a) and (b).

Rodriguez-Mercado challenges the constitutionality of

§ 1326(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Rodriguez-Mercado contends that Almendarez-Torres was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40372 -2-

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-Mercado 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.

The judgment of the district court is AFFIRMED.