
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier LOPEZ-HERNANDEZ, also known as Francisco Javier Lopez, Defendant-Appellant.
    No. 05-40728.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided April 11, 2006.
    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 JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
   PER CURIAM:

Francisco Javier Lopez-Hernandez appeals his guilty-plea conviction and sentence for unlawful presence in the United States following deportation. He argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The Government seeks enforcement of the waiver provisions in Lopez-Hernandez’s plea agreement. We decline ruling on the applicability of the waivers because his 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 Lopez-Hernandez 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). Lopez-Hernandez 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
     