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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40103
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE CRUZ ANTUNA-MORAN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      --------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:

     Jose Cruz Antuna-Moran appeals his guilty-plea conviction

and 46-month sentence for illegally reentering the United States

after having been deported previously.   Antuna-Moran argues that

the district court erred by enhancing his base offense level

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based upon a

determination that his Texas conviction for aggravated assault of

a peace officer was a crime of violence.     He also argues that the

district court’s statement that it would have sentenced him to

46 months of imprisonment, even if its guidelines calculations

were incorrect, does not render the alleged sentencing error by

the district court harmless.
                           No. 06-40103
                                -2-

     Given our decision in United States v. Fierro-Reyna, 466

F.3d 324, 326, 329-30 (5th Cir. 2006), the district court erred

in enhancing Antuna-Moran’s offense level under

§ 2L1.2(b)(1)(A)(ii) based upon his prior Texas conviction for

aggravated assault on a peace officer.    When a district court

misapplies the Guidelines, remand is appropriate unless this

court concludes, “on the record as a whole, that the error was

harmless, i.e., that the error did not affect the district

court’s selection of the sentence imposed.”     United States v.

Davis, 478 F.3d 266, 273 (5th Cir. 2007).

     Here, Antuna-Moran’s sentence was not the result of the

district court’s incorrect application of the Guidelines because

the district court stated that, even if it had miscalculated the

Guidelines, the resulting guidelines range would be unreasonably

low and that it would impose the same 46-month sentence.      See

United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir.

2006).   Moreover, the alternate non-guidelines sentence imposed

by the district court is reasonable considering the case-specific

factors cited by the district court.     See id. at 527-28.

     Antuna-Moran also challenges the constitutionality of

8 U.S.C. § 1326(b).   His constitutional challenge is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Antuna-Moran contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v.
                           No. 06-40103
                                -3-

New Jersey, 530 U.S. 466 (2000), 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).   Antuna-Moran properly

concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, and that he raises it

here only to preserve it for further review.

     Accordingly, the judgment of the district court is

affirmed.   Antuna-Moran’s motion to expedite his appeal is

denied.

     AFFIRMED; MOTION DENIED.
