United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 24, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40483
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MIGUEL MARTINEZ-HERRERA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2015-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Miguel Martinez-Herrera (Martinez) appeals his sentence

under 8 U.S.C. § 1326(a) and (b) for illegal reentry into the

United States after having been deported following conviction for

an aggravated felony.   Martinez asserts that the “felony” and

“aggravated felony” provisions of § 1326(b) are facially

unconstitutional.

     The constitutional issue raised is foreclosed by Almendarez-

Torres v. United States, 

, 235 (1998).     Although


     *
       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this opinion should not be published and is not precedent except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. 05-40483
                                -2-

Martinez contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule it in

light of Apprendi v. New Jersey, 

(2000), we have

repeatedly rejected such arguments on the basis that Almendarez-

Torres remains binding.   See United States v. Garza-Lopez, 

, 276 (5th Cir.), cert. denied, 

(2005).

Martinez 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.

     The district court’s judgment is AFFIRMED.