                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40653
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE FELIX RUBIO-CRUZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2303-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Felix Rubio-Cruz appeals his conviction and sentence

for illegal reentry after a previous deportation.   Rubio-Cruz

argues that the district court plainly erred by enhancing his

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

Texas conviction for aggravated assault.   Rubio-Cruz contends

that the enhancement is improper because the Texas aggravated

assault statute may be violated by conduct such as recklessness.




     *
       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this opinion should not be published and is not precedent except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. 05-40653
                                -2-

     As the United States Sentencing Commission has identified

aggravated assault as a “crime of violence” for purposes of

§ 2L1.2(b)(1)(A), the district court did not commit error, plain

or otherwise, by imposing the sentence enhancement.    § 2L1.2,

comment. (n.1(b)(iii)); see United States v. Izaguirre-Flores,

405 F.3d 270, 275 (5th Cir.), cert. denied, 126 S. Ct. 253

(2005); see also United States v. Rayo-Valdez, 302 F.3d 314, 317

(5th Cir. 2002).

     Rubio-Cruz argues next that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional on their face and as applied in his case in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).    Rubio-

Cruz’s constitutional challenge is foreclosed by Almendarez-

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

Rubio-Cruz 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).    Rubio-Cruz

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.
