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. 05-40788 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HILARIO PENA-AMARO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-78-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Hilario Pena-Amaro (Pena) appeals his conviction for illegal

reentry by an alien after deportation. He argues that the

provisions of

(b) are unconstitutional in light of

Apprendi v. New Jersey,

(2000).

Pena’s constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States,

(1998).

Although Pena contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40788 -2-

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). Pena

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.