                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               October 24, 2006

                                                       Charles R. Fulbruge III
                                                               Clerk
                           No. 06-40227
                         Summary Calendar


UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

ELIO GUERRERO-DELGADO, also known as Elio Delgado, also
known as Aurelio Garcia-Lopez,

                                   Defendant-Appellant.

                     --------------------
         Appeal from the United States District Court
              for the Southern District of Texas
                     USDC No. 1:05-CR-853
                     --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Elio Guerrero-Delgado (“Guerrero”) appeals his guilty-plea

conviction and sentence for violating 8 U.S.C. § 1326(a) and

(b) by re-entering the United States without permission after

having been convicted of an aggravated felony and deported.

     For the first time on appeal, Guerrero argues that the

district court erred by enhancing his sentence pursuant to

     *
       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this opinion should not be published and is not precedent except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. 06-40227
                               -2-

§ 2L1.2(b)(1)(A)(ii) (2004) based on its determination that his

1995 conviction under TEX. PENAL CODE § 21.11(a)(1) for indecency

with a child was a crime of violence.       In United States v.

Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000), this court

held that the victim of a § 21.11(a)(2) offense, “‘a child

younger than 17 years,’ is clearly a ‘minor.’”      It also held

that a violation of § 21.11(a)(2) was “sexual abuse of a minor”

as that term is used in its “ordinary, contemporary, [and]

common” meaning.”      Id. at 604-05.     Although Guerrero was

convicted under § 21.11(a)(1), the language in § 21.11(a)

addressing the age of a victim applies to both subsections

(a)(1) and (a)(2), and the Zavala-Sustaita court’s holding is

therefore dispositive of this case.        See § 21.11(a).    In

addition, although Zavala-Sustaita involved an enhancement

imposed under a previous version of § 2L1.2, its reasoning

remains sound law and is applicable here.     See United States

v. Izaguirre-Flores, 405 F.3d 270, 273-75 (5th Cir.) (quoting

Zavala-Sustaita, 214 F.3d at 604), cert. denied, 126 S. Ct. 253

(2005).   Guerrero has not shown error, plain or otherwise.

United States v. Cotton, 535 U.S. 625, 631-32 (2005).

    Guerrero    also   challenges   the   constitutionality   of

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the
                         No. 06-40227
                              -3-

offense that must be found by a jury, in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).   The Government disagrees and

further asserts that Guerrero lacks standing to challenge the

constitutionality of § 1326(b).

    Because Guerrero would be entitled to a lesser sentence if

his constitutional challenge were successful, he has standing.

See Henderson v. Stalder, 287 F.3d 374, 380 (5th Cir. 2002).

However, Guerrero’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).

Guerrero 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.

    The judgment of the district court is AFFIRMED.
