                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       August 30, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 06-41313
                            Summary Calendar



     UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

           versus

     EVERARDO VIGIL-SANCHEZ, also
     known as Everardo Sanchez-Vigil,

                                              Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 7:06-CR-98-ALL



Before GARWOOD, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Everardo      Vigil-Sanchez(Vigil)     appeals     his      guilty-plea

conviction and sentence for being unlawfully present in the United

States following removal.        The district court enhanced Vigil’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).


     *
      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opinion should not be published and is not precedent except under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.
Vigil argues that the enhancement was improper because the statute

under which he was convicted sets the legal age for consent 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 or younger.

     Vigil’s prior conviction was under CAL. PENAL CODE ANN. §

261.5(c) which proscribes “unlawful sexual intercourse with a minor

who is   more   than   three   years       younger   than   the   perpetrator.”

Section 261.5(a) provides that “unlawful sexual intercourse” is

that with a “minor” not married to the perpetrator, defining

“minor” as “a person under the age of 18 years” and “adult” as “a

person who is at least 18 years of age.”1              Under a common-sense

approach, Vigil’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. Acosta, 214 F.App’x 398

(5th Cir. 2007); United States v. Lopez-Garcia, 163 F.App’x 306

(5th Cir. 2006); United States v. Izaguirre-Flores, 405 F.3d 270,

275 (5th Cir. 2005); see also United States v. Hernandez-Castillo,

449 F.3d 1127, 1131 (10th Cir. 2006), cert. denied, 127 S.Ct. 936

(2007) (§ 261.5(c)); United States v. Vargas-Garnica, 332 F.3d 471,

474 & n.1 (7th Cir. 2003) (§ 261.5(c)).



     1
      The complaint alleges Vigil was over 21 and the victim was
under 16.

                                       2
     Vigil 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 Vigil 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. 2005).           Vigil 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.




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