United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

August 25, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-20897

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICANDRO RODRIGUEZ-MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CR-276-ALL

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:* Nicandro Rodriguez-Martinez (Rodriguez) appeals his guilty- plea conviction and sentence for illegal reentry of a deported alien following an aggravated felony conviction. Rodriguez argues that the "felony" and "aggravated felony" provisions of 8U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional. Rodriguez's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Rodriguez contends that Almendarez-Torres was * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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, 126 S. Ct. 298 (2005). Rodriguez 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.