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

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 06-40522
                        Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RAMON ESTRADA-VILLALOBOS, also known as Samuel Arebalos-Herrera,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:05-CR-1012-1
                       --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Ramon Estrada-Villalobos (Estrada) appeals the sentence

imposed following his plea of guilty to being in the United

States illegally after deportation.    Estrada’s sentence was

increased due to a prior conviction for the Florida felony of

aggravated battery.

     Estrada contends that his Florida conviction was not a crime

of violence (COV) under the Sentencing Guidelines because the

conviction could have resulted from mere contact with a weapon,

without harm or the use of force.   A “conviction for aggravated

     *
       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this opinion should not be published and is not precedent except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. 06-40522
                                -2-

battery under [this] specific subsection of Florida law qualifies

as a COV because it has as an element at least a threatened use

of force” because touching with a weapon constitutes “either

actual or threatened use of physical force.”    United States v.

Dominguez, 479 F.3d 345, 349 (5th Cir. 2007).

     Estrada also challenges, in light of Apprendi v. New Jersey,

530 U.S. 466 (2000), the constitutionality of 8 U.S.C.

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

as sentencing factors rather than elements of the offense that

must be found by a jury.

     Estrada’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. 2005).   Estrada 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 Government’s motion to supplement the record is DENIED.

     AFFIRMED.
