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. 05-20785

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO VALDEZ-SERRATO, also known as

Armando Serrato Valdez,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CR-93-1

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:* Armando Valdez-Serrato appeals his guilty-plea conviction and 27-month sentence for being found in the United States unlawfully after deportation following an aggravated felony conviction. Valdez-Serrato argues that the "felony" and "aggravated felony" provisions of 8U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Valdez-Serrato's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Valdez-Serrato 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 AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Valdez-Serrato 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.