United States Court of Appeals Fifth Circuit

FILED February 23, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-40791 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS GONZALEZ-ROJAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-27-1 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Luis Gonzalez-Rojas (Gonzalez) appeals following his

conviction and sentence under

(a) and (b) for

being illegally present in the United States after having been

deported following conviction for an aggravated felony. Gonzalez

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

(b) are unconstitutional. The Government seeks to

enforce a waiver-of-appeal provision contained in Gonzalez’s 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40791 -2-

Gonzalez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Gonzalez 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). Gonzalez 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.

Given the above disposition, we do not decide whether

Gonzalez’s appeal is barred by the waiver provision of his plea

agreement.

The judgment of the district court is AFFIRMED.