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. 05-40405 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOVEL LEONARDO LINO-MEJIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-635-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jovel Leonardo Lino-Mejia appeals his guilty-plea conviction

for being an alien found in the United States after deportation

subsequent to an aggravated felony conviction. The district

court sentenced Lino-Mejia to 63 months of imprisonment and three

years of supervised release. We need not decide the

applicability of the waiver in this case because the only issue

that Lino-Mejia raises is foreclosed.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40405 -2-

Lino-Mejia challenges the constitutionality of

(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey,

(2000). Lino-Mejia’s constitutional

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

(1998). Although Lino-Mejia contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi, 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). Lino-Mejia 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 judgment of the district court is

AFFIRMED.