
    UNITED STATES of America, Plaintiff-Appellee, v. Tomas BETANCOURT-OCHOA, Defendant-Appellant.
    No. 05-41006.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Feb. 23, 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, Laura Fletcher Leavitt, Assistant Federal Public Defender, Sarah Beth Landau, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before GARZA, DENNIS, and PRADO, Circuit Judges.
   PER CURIAM:

Tomas Betancourt-Ochoa (Betancourt) pleaded guilty to unlawful presence in the United States following deportation after having been convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him to 37 months of imprisonment, to be followed by three years of supervised release.

Betancourt 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. We decline ruling on the applicability of the waiver provisions in Betancourt’s plea agreement 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 Betancourt 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 AlmendarezTorres 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). Betancourt 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       Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     