
    UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Garcia ALMANZAN, Defendant-Appellant.
    No. 05-40131.
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Nov. 9, 2005.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.
    Marjorie A. Meyers, Federal Public Defender, H Michael Sokolow, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before DAVIS, SMITH, and DENNIS, Circuit Judges.
   PER CURIAM:

Ricardo Garcia Almanzan appeals his guilty-plea conviction of being an alien unlawfully found in the United States after deportation, having previously been convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b).

Almanzan argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. He concedes that this issue is foreclosed but seeks to preserve review by the Supreme Court.

Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule Almendarez-Torres. See United States v. Rivera, 265 F.3d 310, 312 (5th Cir.2001). This argument is foreclosed. Rivera, 265 F.3d at 312.

The judgment of the district court is 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     