UNITED STATES of America, Plaintiff-Appellee, v. Naun MARTINEZ-FIGUEROA, also known as Nahum Martinez, Defendant-Appellant, 169 F. App'x 211

PER CURIAM: Naun Martinez-Figueroa pleaded guilty to being found in the United States after previous deportation and was sentenced to 37 months of imprisonment and three years of supervised release. Martinez-Figueroa argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. Specifically, he argues that the viability of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is in doubt in light of later Supreme Court cases. Martinez-Figueroa’s constitutional challenge is foreclosed by Almendarez-Torres.

Although Martinez-Figueroa 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).

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 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.