                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS          December 22, 2003
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                              No. 03-50497
                            Summary Calendar



                       UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                 versus

                       JAVIER ALVAREZ-GUTIERREZ,

                          Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                    USDC No. DR-02-CR-678-1-WWJ
                        --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Javier Alvarez-Gutierrez appeals his sentence for illegal

reentry into the United States following removal in violation of 8

U.S.C. § 1326.    He argues that the district court erred in imposing

a   16-level   increase    in   his   offense   level   under    U.S.S.G.

§ 2L1.2(b)(1)(A) based on his prior aggravated assault conviction.

He argues that the Sentencing Commission intended that the 16-level

increase should be applied only to those crimes of violence that


     *
        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that this opinion should not be published and is not precedent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. 03-50497
                                           -2-

are also aggravated felonies under 8 U.S.C. § 1101(a)(43).                        Under

the plain language of U.S.S.G. § 2L1.2(b)(1)(A) and its comments,

a 16-level increase applies if the defendant has a prior conviction

for a crime of violence, which expressly includes an aggravated

assault.     See U.S.S.G. § 2L1.2(b)(1)(A) and comment. (n.1(B)(ii)

(II)). Neither U.S.S.G. § 2L1.2(b)(1)(A) nor the comment refers to

8 U.S.C. § 1101(a)(43) or provides that a crime of violence must

also    be   an    aggravated     felony    under    8     U.S.C.    §   1101(a)(43).

Accordingly, the district court did not err in imposing the 16-

level    increase     based      on    Alvarez’s     prior       aggravated      assault

conviction.

       Alvarez argues that his sentence exceeds the statutory maximum

sentence for the offense of illegal reentry into the United States

as charged in the indictment in view of Apprendi v. New Jersey, 530

U.S. 466 (2000).          He acknowledges that the argument is foreclosed

by Alemendarez-Torres v. United States, 523 U.S. 224 (1998), but

seeks to preserve it for possible Supreme Court review.                       Apprendi

did not overrule Almendarez-Torres.             See Apprendi 530 U.S. at 489-

90.     This      court   must   therefore     follow      the    precedent      set   in

Almendarez-Torres         “unless     and   until    the    Supreme      Court   itself

determines to overrule it.” United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000).

       AFFIRMED.
