                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 19, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 06-40307
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARIO PENA-LOPEZ,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-1805-ALL
                       --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Mario Pena-Lopez appeals his guilty-plea conviction and

sentence for illegal reentry, in violation of 8 U.S.C. § 1326.

Pena-Lopez first argues that the district court erred in

assessing a 16-level “crime of violence” enhancement under

U.S.S.G. § 2L1.2 based on his prior felony conviction for sexual

assault of a child under TEX. PENAL CODE § 22.011(a)(2).     According

to Pena-Lopez, such an offense does not constitute a “crime of

violence” within the meaning of § 2L1.2(b)(1)(A).    As Pena-Lopez




     *
       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this opinion should not be published and is not precedent except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. 06-40307
                                 -2-

concedes, we review this argument for plain error.      See United

States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).

     The district court committed no error, plain or otherwise.

A violation of § 22.011(a)(2) “meet[s] a common-sense as well as

a generic, contemporary definition of statutory rape.”      United

States v. Alvarado-Hernandez, 465 F.3d 188, 189-90 (5th Cir.

2006).    It is thus the equivalent of an enumerated offense that

triggers the § 2L1.2 enhancement.

     Pena-Lopez 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.      His 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 overrule Almendarez-Torres in light of

Apprendi v. 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. 2005).   Pena-Lopez 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.
