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. 05-40759 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHESTER ENRIQUE ROMERO-ORTIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-903-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Chester Enrique Romero-Ortiz 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 Romero-Ortiz to 33 months of

imprisonment and three years of supervised release. To the

extent that Romero-Ortiz’s challenge to the constitutionality of

is construed as a challenge to his conviction, it

is not precluded by the terms of the plea agreement.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40759 -2-

Romero-Ortiz’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Romero-Ortiz 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). Romero-Ortiz 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.