                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 15, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40599
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

SILVINO HERNANDEZ-HERNANDEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       (5:05-CR-2370-ALL)
                      --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Silvino Hernandez-Hernandez (Hernandez)

appeals the 41-month term of imprisonment imposed on his guilty-

plea conviction for illegal reentry following deportation.             He

objects to the 16-level “crime of violence” enhancement based on

his prior conviction for aggravated battery with a firearm under

Florida Statute Annotated § 784.045(1)(a).   After Hernandez filed

his appeal, we held that the relevant offense qualifies as crime of

violence under the Sentencing Guidelines “because it has as an

element at least a threatened use of force.”      United States v.


     *
       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this opinion should not be published and is not precedent except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.
Dominguez,         479   F.3d   345,   347-49        (5th        Cir.   2007);     see

§ 2L1.2(b)(1)(A)(ii), comment. (n.1(B)(iii)).                    The enhancement of

Hernandez’s sentence was proper.

       Hernandez further asserts that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(a) and (b) cause the statute

to    be   unconstitutional.         This      argument     is    foreclosed     under

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

Hernandez 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 repeatedly have 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).         Hernandez properly concedes that this argument is

foreclosed and that he raises it only to preserve it for further

review.

       The judgment of the district court is

AFFIRMED.




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