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. 05-40862 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GONZALEZ-GUERRA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-77-1 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Juan Gonzalez-Guerra (Gonzalez) appeals his guilty-plea

conviction and sentence for illegal reentry after a previous

deportation. He argues that the “felony” and “aggravated felony”

provisions of

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

in light of Apprendi v. New Jersey,

(2000). We need

not decide the applicability of the plea-agreement waivers in

this case because the issue that Gonzalez raises is foreclosed.

Gonzalez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40862 -2-

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, 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.

AFFIRMED.