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. 05-40756 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NAUN MARTINEZ-FIGUEROA, also known as Nahum Martinez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-993-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Naun Martinez-Figueroa pleaded guilty to being found in the

United States after previous deportation and was sentenced to 37

months of imprisonment and three years of supervised release.

Martinez-Figueroa argues that the felony and aggravated felony

provisions of

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

Specifically, he argues that the viability of Almendarez-Torres

v. United States,

(1998), is in doubt in light of

later Supreme Court cases.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40756 -2-

Martinez-Figueroa’s constitutional challenge is foreclosed

by Almendarez-Torres. Although Martinez-Figueroa contends that

Almendarez-Torres was 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). Martinez-

Figueroa 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.