                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  January 17, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-40061
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

VICTOR LOPEZ-GARCIA,

                                     Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 7:04-CR-561-ALL
                       --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Victor Lopez-Garcia appeals the sentence imposed after his

plea of guilty to reentering the United States illegally after

deportation.   His sentence was enhanced due to a prior California

conviction of unlawful sexual intercourse with a minor, in

violation of CAL. PENAL CODE ANN. § 261.5.   Lopez-Garcia contends

that the prior offense of conviction was neither a felony nor a

crime of violence under U.S.S.G. § 2L1.2.

     The now-advisory federal sentencing guidelines define felony

as “any federal, state, or local offense punishable by

     *
       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this opinion should not be published and is not precedent except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. 05-40061
                                  -2-

imprisonment for a term exceeding one year.”      U.S.S.G. § 2L1.2,

comment. (n.2).    Section 261.5(c) of the CALIFORNIA PENAL CODE

provides that a violation may be either misdemeanor or a felony

punishable by imprisonment for an unspecified term.       CAL. PENAL

CODE ANN. § 261.5(c).   The record shows that Lopez-Garcia faced up

to three years of imprisonment and that he failed to get the

offense reduced to a misdemeanor.     He was thus convicted of a

felony.

     Lopez-Garcia contends also that his prior offense does not

fall within the generic definitions of “statutory rape” or

“sexual abuse of a minor” under the comments to U.S.S.G. § 2L1.2.

Our review of the prior offense may include reference to the

charging papers.    See United States v. Calderon-Pena, 383 F.3d

254, 258 & n.5 (5th Cir. 2004), cert. denied, 125 S. Ct. 932

(2005).   Lopez-Garcia’s charging instrument alleged sexual

intercourse with a minor who was not Lopez’s spouse and who was

more than three years younger than Lopez.      Under a “common sense”

approach, such an offense is “statutory rape” as listed under the

comment to U.S.S.G. § 2L1.2.     See United States v.

Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005); see also In

re Jennings, 95 P.3d 906, 921 (Cal. 2004) (noting that statutory

rape is now called unlawful sexual activity with a minor under

CAL. PENAL CODE ANN. § 261.5).   The offense also meets the common-

sense definition of “sexual abuse of a minor.”      See

Izaguirre-Flores, 405 F.3d at 275-76 (similar North Carolina
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                                 -3-

crime); United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th

Cir. 2000) (similar Texas crime). Lopez-Garcia’s prior conviction

was for a “crime of violence.”

     For the first time on appeal, Lopez-Garcia argues that the

district court erred by imposing his sentence under a mandatory

sentencing guidelines scheme, citing United States v. Booker, 125

S. Ct. 738, 756 (2005).   Lopez-Garcia arguably waived this issue

in his plea agreement when he waived the right to have facts

essential to punishment charged in the indictment or proved to a

jury and when he agreed to be sentenced under the federal

sentencing guidelines.    We need not address the waiver, however,

because Lopez-Garcia’s Booker claim fails under the applicable

plain-error standard of review.    See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.) (plain

error), cert. denied, 126 S. Ct. 267 (2005).

     Although sentencing Lopez-Garcia under a mandatory

guidelines scheme constituted error in light of Booker, his claim

fails because there is no showing that the district court would

have imposed a lesser sentence under advisory guidelines.    See

id. at 733; United States v. Mares, 402 F.3d 511, 517-18, 521

(5th Cir.), cert. denied, 126 S. Ct. 43 (2005).    In addition,

Lopez-Garcia’s argument that the error is structural and

presumptively prejudicial is without merit.    See United States v.

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, 126

S. Ct. 464 (2005).
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                                -4-

     Lopez-Garcia next argues that the felony and aggravated

felony provisions of 8 U.S.C. § 1326(b) are unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000).   He concedes

that his argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he posits that Apprendi casts

doubt on the continuing validity of Almendarez-Torres.   Apprendi

did not overrule Almendarez-Torres.   See Apprendi, 530 U.S. at

489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).   This court must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (quotation marks omitted).

     The district court’s judgment is AFFIRMED.
