                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              April 27, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 06-40627
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ENRIQUE BARRAGAN-CASTRO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:05-CR-1074
                      --------------------

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.


PER CURIAM:*

     Jose Enrique Barragan-Castro (Barragan) appeals his

conviction and sentence for illegal reentry after having been

deported following a conviction for aggravated felony in

violation of 8 U.S.C. § 1326(a) and (b).    Barragan contends that

the district court erred by applying an eight-level increase to

his offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(C), because

the conviction that resulted in his deportation, misdemeanor

assault in violation of Texas Penal Code Ann. 22.01(a)(1), is not

     *
       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this opinion should not be published and is not precedent except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. 06-40627
                                -2-

a crime of violence under 18 U.S.C. § 16, and does not constitute

an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).     In United

States v. Villegas-Hernandez, 468 F.3d 874, 878-84 (5th Cir.

2006), we considered the same Texas statute and held that it does

not meet either definition of a crime of violence under § 16 and,

thus, is not an “aggravated felony” under § 2L1.2(b)(1)(C).

Accordingly, the district court erred in enhancing Barragan’s

sentence pursuant to § 2L1.2(b)(1)(C).     Because we cannot

conclude, based on the record as a whole, that the error did not

affect the district court’s selection of the sentence imposed,

that is, the error was harmless, a remand is appropriate.      See

Williams v. United States, 503 U.S. 193, 203 (1992).     Barragan’s

sentence is vacated and this matter remanded for resentencing in

accordance with this opinion.

     Barragan also challenges the constitutionality of the

treatment of prior felony and aggravated felony convictions under

8 U.S.C. § 1326(b) as sentencing factors rather elements of the

offense that must be found by a jury.     This challenge is

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

235 (1998).   Although Barragan suggests that a majority of the

Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), this court has

repeatedly rejected such arguments and found 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).
                          No. 06-40627
                               -3-

Barragan concedes his argument is foreclosed, but raises it

preserve it for further review.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
