                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 12, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-21089
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FELIX FLORES-MORALES, also known as Felix Morales,
also known as Alfonso Castro,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:05-CR-278-ALL
                      --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Felix Flores-Morales appeals his guilty plea conviction and

sentence for illegal reentry into the United States after

deportation following an aggravated felony in violation of

8 U.S.C. § 1326(a) & (b)(2).   He argues that the district court

erred in enhancing his sentence by 16 levels under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based on his 1995 Texas conviction for

sexual assault of a child under TEX. PENAL CODE § 22.011(c)(1); he

argues that the offense was not sexual abuse of a minor because


     *
       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this opinion should not be published and is not precedent except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. 05-21089
                                 -2-

the term “child” in the TEX. PENAL CODE § 22.011(a)(2)(A) & (c)(1)

includes a person younger than 17.   As Flores-Morales concedes,

review is limited to plain error.    See United States v. Vega, 332

F.3d 849, 852 n.3 (5th Cir. 2003).   In view of this court’s

decision in United States v. Zavala-Sustaita, 214 F.3d 601, 604-

08 (5th Cir. 2000), Flores-Morales cannot establish that the

district court’s application of the § 2L1.2 enhancement was clear

or obvious error.    See Vega, 332 F.3d at 852 n.3.

     Flores-Morales challenges § 1326(b)’s treatment of prior

felony and aggravated felony convictions as sentencing factors

rather than elements of the offense in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   Flores-Morales’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Flores-Morales contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi, 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).   Flores-Morales acknowledges the Supreme

Court’s decision in Almendarez-Torres, but raises the issue to

preserve it for further review.

     AFFIRMED.
