                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 21, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-10966
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LEONARDO GERARDO GARCIA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:06-CR-71-ALL
                       --------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Leonardo Gerardo Garcia appeals his guilty-plea conviction

and sentence for violating 8 U.S.C. § 1326(a) and (b) by

illegally reentering the United States after being deported

following an aggravated felony conviction.    Garcia claims the

district court erred, under the advisory Guidelines, by enhancing

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

its determination that his 1995 convictions under TEX. PENAL CODE

§ 21.11(a) for indecency with a child were crimes of violence.

Garcia contends that his convictions under § 21.11(a)(2) did 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this opinion should not be published and is not precedent except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. 06-10966
                                -2-

constitute “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii)

because the Texas statute criminalizes consensual sex between

minors of the same sex and sex between a 19-year old on the eve

of his or her 20th birthday and a child two days shy of his or

her 17th birthday.

     The “sexual abuse of a minor” is a “crime of violence” under

§ 2L1.2(b)(1)(A)(ii).   United States v. Zavala-Sustaita, 214 F.3d

601 (5th Cir. 2000), held that a violation of § 21.11(a)(2) is

“sexual abuse of a minor” as that term is used in its “ordinary,

contemporary, [and] common meaning.”   Although Zavala-Sustaita

involved an enhancement imposed under a previous version of

§ 2L1.2, its reasoning remains sound law and is applicable here.

See United States v. Izaguirre-Flores, 405 F.3d 270, 273-75

(5th Cir.) (quoting Zavala-Sustaita, 214 F.3d at 604), cert.

denied, 126 S. Ct. 253 (2005)).   Accordingly, the district court

did not err in enhancing Garcia’s offense level pursuant to

§ 2L1.2(b)(1)(A)(ii).

     Garcia also challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors, rather than elements of the offense that must

be found by a jury.   Garcia’s constitutional challenge is

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

235 (1998).   Although he contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would now overrule Almendarez-Torres in light of Apprendi v.
                          No. 06-10966
                               -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).   Garcia concedes this claim

is foreclosed by Almendarez-Torres and raises it here only to

preserve it for further review.

     AFFIRMED.
