                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                        REVISED APRIL 10, 2007
                IN THE UNITED STATES COURT OF APPEALS                  April 4, 2007
                         FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                               No. 06-40939
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                           Plaintiff-Appellee,

                                   versus

                       FRANCISCO JAVIER DIAZ-VELA,

                           Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 1:06-CR-28-ALL
                         --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Francisco Javier Diaz-Vela appeals his guilty-plea conviction

and sentence for being unlawfully present in the United States

following   removal.       The   district   court    enhanced     Diaz-Vela’s

sentence    based   upon   its   finding    that    his   prior    California

conviction for unlawful sexual intercourse with a minor was a

conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A).

Diaz-Vela argues that the enhancement was improper because the

statute under which he was convicted sets the legal age for consent


     *
       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this opinion should not be published and is not precedent except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. 06-40939
                                    -2-

to sexual activity at 18 years of age while the Model Penal Code

and the majority of the states set the legal age of consent for

sexual activity at 16 years of age of younger.

     Diaz-Vela’s prior conviction was under CAL. PENAL CODE ANN.

§ 261.5. Under a common sense approach, Diaz-Vela’s conviction was

for the enumerated offenses of statutory rape and sexual abuse of

a   minor   and,     accordingly,     a   crime      of   violence   under

§ 2L1.2(b)(1)(A)(ii).     See § 2L1.2, comment. (n.1(b)(iii)); United

States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.), cert.

denied, 126 S. Ct. 253 (2005); see also United States v. Hernandez-

Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006), cert. denied, 127

S. Ct. 936 (2007); United States v. Vargas-Garnica, 332 F.3d 471,

474 & n.1 (7th Cir. 2003).

     Diaz-Vela also argues that the felony and aggravated felony

provisions contained in 8 U.S.C. § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).                This

constitutional     argument   is   foreclosed   by   Almendarez-Torres   v.

United States, 523 U.S. 224, 235 (1998).              Although Diaz-Vela

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).         Diaz-Vela properly concedes that his
                           No. 06-40939
                                -3-

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but he raises it here to preserve it for further review.

     AFFIRMED.
