Roberto Hernandez-Martinez appeals his sentence for being present in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Hernandez-Martinez challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense- that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Government argues that the waiver provision in Hernandez-Martinez’s plea agreement precludes his attack on the constitutionality of § 1326(b). We assume, arguendo only, that the waiver does not bar the instant appeal.

Hernandez-Martinez’s constitutional challenge is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Hernandez-Martinez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule AlmendarezTorres in light of Apprendi, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Hernandez-Martinez properly concedes that his argument is foreclosed in light of Almendarez-Torres *451 and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.