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. 05-40819 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TITO HERRERA-TREJO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2108-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Tito Herrera-Trejo (Herrera) appeals his guilty-plea

conviction and sentence for re-entry of a deported alien.

Herrera argues that the district court erred by characterizing

his state felony conviction for possession of a controlled

substance as an “aggravated felony” under U.S.S.G.

§ 2L1.2(b)(1)(C). Herrera’s argument is without merit. See

United States v. Hernandez-Avalos,

(5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40819 -2-

2001); United States v. Hinojosa-Lopez,

(5th

Cir. 1997).

Herrera also argues that the “felony” and “aggravated

felony” provisions of

(b)(1) and (2) are

unconstitutional. This constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Herrera 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). Herrera 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.

The judgment of the district court is AFFIRMED.