
    UNITED STATES of America, Plaintiff-Appellee, v. Alvaro RODRIGUEZ-BENITEZ, Defendant-Appellant.
    No. 06-40160.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Oct. 25, 2006.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Michael L. Herman, Federal Pub-lie Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
   PER CURIAM:

Alvaro Rodriguez-Benitez (Rodriguez) appeals his guilty-plea conviction and sentence for violating 8 U.S.C. § 1326 by being found in the United States without permission after deportation. He argues, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the 46-month prison sentence imposed in his case exceeds the two-year statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges 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.

Rodriguez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     