                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 19, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-50850
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAVIER ROSAS-AGUILAR, also known as Javier Rueda-Aguilar, also
known as Javier Aguilar Rueda,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:06-CR-377-ALL
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Javier Rosas-Aguilar (Rosas) appeals following his guilty

plea to illegal reentry, in violation of 8 U.S.C. § 1326.       Rosas

argues for the first time on appeal that his prior conviction in

Texas for attempted sexual assault is not a crime of violence and

that the district court therefore erroneously applied a 16-level

sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Because he did not object in the district court to this

enhancement, Rosas correctly concedes that our review is for


     *
       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this opinion should not be published and is not precedent except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. 06-50850
                                -2-

plain error.   See United States v. Gracia-Cantu, 302 F.3d 308,

310 (5th Cir. 2002).

     In support of his argument, Rosas relies on United States v.

Luciano-Rodriguez, 442 F.3d 320, 322-23 (5th Cir.), cert. denied,

127 S. Ct. 747 (2006), where we held that the Texas offense of

sexual assault was not a forcible sex offense because certain

subsections of the Texas statute “criminaliz[ed] assented-to-but-

not-consented-to conduct” and the element of force was absent

from those subsections.   During the course of briefing, the

Government has supplemented the appellate record with Rosas’s

state court charging papers and judgment, which show that he was

charged with a sexual assault by the use of force.   Rosas now

concedes that his challenge is unavailing.   In light of the

Government’s supplementation and Rosas’s concession, Rosas has

failed to demonstrate plain error.   See United States v.

Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004) (en banc);

§ 2L1.2(b)(1)(A)(ii); cf. Shepard v. United States, 544 U.S. 13,

16 (2005).

     Rosas also argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that the 37-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.
                           No. 06-50850
                                -3-

     Rosas’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (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, 126 S. Ct. 298 (2005).     Rosas

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.
