                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    April 17, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-40919
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

WILMER OMAR VALLE, also known as Melbin Danilo Landaverde,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:05-CR-106-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Wilmer Omar Valle appeals from a guilty-plea conviction for

illegal reentry.   For the first time on appeal, Valle argues

that the district court erred in assigning a 16-level increase

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a prior California

conviction for assault with a deadly weapon.    Although Valle

arguably waived the issue, out of an abundance of caution we

review for plain error.     See United States v. Fernandez-Cusco,




     *
       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this opinion should not be published and is not precedent except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. 05-40919
                                -2-

 447 F.3d 382, 384 (5th Cir.), cert. denied, 127 S. Ct. 194

(2006).

     In United States v. Sanchez-Ruedas, 452 F.3d 409, 412-14,

(5th Cir.), cert denied, 127 S. Ct. 315 (2006), we examined the

identical California statute at issue in Valle’s case and held

that the California statute was sufficiently similar to the

generic contemporary definition of aggravated assault to qualify

as an enumerated offense of a crime of violence.   The district

court thus did not plainly err in assigning a 16-level increase

for Valle’s prior conviction for assault with a deadly weapon.

See id.

     Valle challenges 8 U.S.C. § 1326(b)’s treatment of prior

felony and aggravated felony convictions as sentencing factors

rather than elements of the offense in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   Valle’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Valle 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).   Valle properly concedes that his argument

is foreclosed in light of Almendarez-Torres and circuit
                          No. 05-40919
                               -3-

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

review.

     AFFIRMED.
