United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 12, 2006

Charles R. Fulbruge III Clerk No. 05-41115 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL MARTINEZ-VALEDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-1022-ALL --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Gabriel Martinez-Valedez (Martinez) pleaded guilty to an

indictment charging him with being found illegally in the United

States following a previous deportation. Martinez challenges the

constitutionality of

(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,

(2000). The

Government contends that Martinez waived the right to assert this

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41115 -2-

question in his plea agreement. We assume, arguendo only, that

the waiver does not bar the instant appeal.

In Almendarez-Torres v. United States,

(1998), the Supreme Court held that treatment of prior

convictions as sentencing factors in § 1326(b)(1) and (2) was

constitutional. Although Martinez contends that a majority of

the Supreme Court would now consider Almendarez-Torres to be

incorrectly decided 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). Martinez

concedes as much, but he raises the argument to preserve it for

further review. The judgment is AFFIRMED.