
    UNITED STATES of America, Plaintiff-Appellee, v. Rosendo TORRES-LUNA, Defendant-Appellant.
    No. 05-41828
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Oct. 24, 2006.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for PlaintiffAppellee.
    Timothy William Crooks, Assistant Federal Public Defender, Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
   PER CURIAM:

Rosendo Torres-Luna (Torres) appeals his guilty-plea conviction and sentence for being an alien found unlawfully in the United States after deportation and following an aggravated felony conviction. Torres argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. Torres also asserts that his appeal is not barred by the waiver-of-appeal provision in his plea agreement. The Government argues that the waiver bars the appeal.

We assume, arguendo only, that the waiver does not bar the instant appeal. Torres’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 Torres contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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). Torres 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     