                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 6, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-20927
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ISMAEL FRANCO-ISLAS, also known as Ismael
Islas Franco, also known Ismael Oslas,
also known as Hugo Franco,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:05-CR-260-ALL
                      --------------------

Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Ismael Franco-Islas appeals his conviction for unlawful

presence in the United States after deportation following an

aggravated felony conviction and his sentence.

     He argues that his 1995 conviction under California Penal

Code § 245(a)(1) does not constitute an “aggravated assault,” and

hence, an enumerated “crime of violence” under U.S.S.G. §

2L1.2(b)(1)(A)(ii).   This court recently held that California


     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-40739
                                -2-

Penal Code § 245(a)(1) qualifies as an “aggravated assault”

within the meaning of the comment to § 2L1.2, and thus it is an

enumerated offense.   United States v. Sanchez-Ruedas, 452 F.3d

409, 412-14 (5th Cir 2006); United States v. Robles-Enriquez, No.

05-40388, 2006 WL 2347324, at *1 (5th Cir. Aug. 11, 2006).    We

are bound by precedent, and therefore, the enhancement must be

upheld.

     Franco-Islas also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Franco-Islas’ constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Franco-Islas 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, 126 S. Ct. 298 (2005).

Franco-Islas 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.

     CONVICTION AND JUDGMENT AFFIRMED.
