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. 05-40637 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

APOLONIO REYNA-MATA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-977-1 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Apolonio Reyna-Mata appeals his guilty plea conviction and

sentence for illegal reentry after having been previously

deported following a prior aggravated felony conviction. He

argues that the “felony” and “aggravated felony” provisions of

(b)(1) and (2) are unconstitutional in light of

Apprendi v. New Jersey,

(2000).

Reyna-Mata’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40637 -2-

Although Reyna-Mata 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).

Reyna-Mata 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.