United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006

Charles R. Fulbruge III Clerk No. 05-40732 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELMER DAVID ESPINA-MOSCOSO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-13-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Elmer David Espina-Moscoso (Espina) pleaded guilty to one

count of reentering the United States without permission after

having been deported. Because Espina’s prior deportation

followed an aggravated-felony conviction, he was subject to the

increased-penalty provisions of

(b). Espina

contends that the treatment of felonies and aggravated felonies

as sentencing factors under § 1326(b)(1) and (2) is

unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40732 -2-

466 (2000), and that he should be resentenced subject to the two-

year maximum set forth in § 1326(a).

Espina’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Espina 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). Espina

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.