UNITED STATES of America, Plaintiff-Appellee, v. Carlos GONZALEZ-CRUZ, Defendant-Appellant, 209 F. App'x 414

PER CURIAM: Carlos Gonzalez-Cruz appeals from his guilty-plea conviction and sentence for attempting to enter the United States without consent after having been deported, in violation of 8 U.S.C. § 1326. Gonzalez-Cruz argues that the district court erred by imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based upon his Texas conviction for burglary of a habitation. As Gonzalez-Cruz concedes, his argument is foreclosed. See United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.), cert. denied, - U.S. -, 127 S.Ct. 265, 166 L.Ed.2d 205 (2006); United States v.

Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), cert. denied, - U.S. -, 126 S.Ct. 1398, 164 L.Ed.2d 100 (2006). Gonzalez-Cruz also challenges, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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. Gonzalez-Cruz’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). Gonzalez-Cruz 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.