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. 05-41744 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS GONZALEZ-CRUZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-579-ALL --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Carlos Gonzalez-Cruz appeals from his guilty-plea conviction

and sentence for attempting to enter the United States without

consent after having been deported, in violation of

. Gonzalez-Cruz argues that the district court

erred by imposing a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for burglary

of a habitation. As Gonzalez-Cruz concedes, his argument is

foreclosed. See United States v. Valdez-Maltos,

(5th Cir.), cert. denied,

(2006); United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41744 -2-

States v. Garcia-Mendez,

(5th Cir. 2005),

cert. denied,

(2006).

Gonzalez-Cruz also challenges, in light of Apprendi v. New

Jersey,

(2000), 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.

Gonzalez-Cruz’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although he 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-

Cruz 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.