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. 05-40597 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO BANEGAS-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-983-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Antonio Banegas-Hernandez appeals his guilty-plea conviction

and sentence for unlawful presence in the United States following

deportation. He argues that the “felony” and “aggravated felony”

provisions of

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

in light of Apprendi v. New Jersey,

(2000). We need

not decide the applicability of the plea-agreement waivers in

this case because the issue that Banegas-Hernandez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40597 -2-

Banegas-Hernandez’s constitutional challenge is foreclosed

by Almendarez-Torres v. United States,

(1998).

Although Banegas-Hernandez 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).

Banegas-Hernandez 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.