                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                       October 26, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                             No. 05-51538
                           Summary Calendar



                     UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                 versus

                    JUAN LUIS GONZALEZ-ALONZO,
                also known as Alfonso Perez-Macias,

                                                   Defendant-Appellant.


                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:05-CR-730-ALL
                       --------------------

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.

PER CURIAM:*

     Juan Luis Gonzalez-Alonzo (Gonzalez) pleaded guilty to count 1

of an indictment charging him with illegal reentry following

deportation.    Gonzalez   was   sentenced    to   a    57-month    term    of

imprisonment and to a three-year period of supervised release.

Gonzalez gave timely notice of his appeal.

     Gonzalez contends that the district court erred in ruling that

his prior New York conviction of third-degree felony rape was a

     *
      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this opinion should not be published and is not precedent except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.
“crime of violence” for purposes of U.S.S.G. § 2L2.1(b)(1)(A)(ii)

(2004).    See N.Y. PENAL LAW ANN. § 130.25 (McKinney 1998).   We review

this question de novo.       See United States v. Sarmiento-Funes,

374 F.3d 336, 338 (5th Cir. 2004).

     Under § 2L1.2(b)(1)(A)(ii), a defendant’s offense level is

increased by 16 levels if, prior to deportation, he was convicted

of a “crime of violence.”    The offense of statutory rape is a crime

of violence.    § 2L1.2, comment. (n.1(B)(iii)).

     Gonzalez was convicted under part 2 of § 130.25, under which

a person is guilty of rape in the third degree when, “Being twenty-

one years old or more, he or she engages in sexual intercourse with

another person to whom the actor is not married less than seventeen

years old.”    § 130.25-2.   This statutory definition is consistent

with a “common sense” meaning of the offense of statutory rape.

See United States v. Izaguirre-Flores, 405 F.3d 270, 275–77 (5th

Cir.), cert. denied, 126 S. Ct. 253 (2005).     The district court did

not err in applying § 2L2.1(b)(1)(A)(ii).

     Gonzalez contends that, in light of the Supreme Court’s

holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), his

sentence    exceeds   the    statutory   maximum   two-year    term   of

imprisonment under 42 U.S.C. § 1326(a) because he was sentenced

under § 1326(b) on the basis of facts that were not alleged in the

indictment, admitted by him, or proved beyond a reasonable doubt.

Gonzalez’s constitutional challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998).             Although

                                   2
Gonzalez contends Almendarez-Torres was incorrectly decided and

that    a   majority   of   the   Supreme   Court    would   overrule

Almendarez-Torres in light of Apprendi, this court has 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).         Gonzalez 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.

       AFFIRMED.




                                  3
