UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis FERMIN, Defendant-Appellant, 204 F. App'x 350

PER CURIAM: Jose Luis Fermín appeals his guilty-plea conviction of, and sentence for, violating 8 U.S.C. § 1826 by being found in the United States without permission after deportation. He argues, in light of Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the 33-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(

a) offense charged in his indictment. He 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. The Government does not seek to invoke the appellate waiver provision in Fermin’s plea agreement and has thus waived the issue. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir.2006). Fermin’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 he 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). Fermín 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.