                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        June 22, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-51000
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

REY DAVID EUSEBIO-GIRON,

                                         Defendant-Appellant.



                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                            No. 3:05-CR-549
                         --------------------



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Rey Eusebio-Giron pleaded guilty of illegal reentry after

deportation and was sentenced to 57 months of imprisonment, three

years of supervised release, and a $100 special assessment.                  He

argues on appeal that the district court erred in determining that

his prior California conviction under CAL. PENAL CODE § 261.5 for



     *
        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opinion should not be published and is not precedent except under the limited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. 05-51000
                                  -2-

unlawful sexual intercourse qualifies under U.S.S.G. § 2L1.2 as a

crime of violence because it met both the enumerated offense of

statutory rape and the enumerated offense of sexual abuse of a

minor.   Concerning the enumerated offense of statutory rape, Euse-

bio-Giron contends that § 261.5 does not have an exception for sex-

ual intercourse between contemporaries, whereas the MODEL PENAL CODE

(“MPC”) definition of statutory rape excludes sexual intercourse

between persons within four years of age of one another.

     Eusebio-Giron bases his argument that § 261.5 does not have an

exception for sexual intercourse between contemporaries on the fact

that § 261.5(b) makes sexual intercourse with a minor within three

years of age from the actor a misdemeanor. Because, however, Euse-

bio-Giron   was   indicted   for   and   pleaded   guilty   of   violating

§ 261.5(c), we need not consider whether the offense listed under

§ 261.5(b) qualifies as statutory rape under § 2L1.2.            See United

States v. Izaguirre-Flores, 405 F.3d 270, 273 n.6 (5th Cir. 2005).

Section 261.5(c) contains an exception similar to that in the MPC,

because it does not criminalize sexual intercourse with a minor

three years or less apart in age from the actor.            Accordingly,

Eusebio-Giron’s argument lacks merit.

     Eusebio-Giron’s constitutional challenge to 8 U.S.C. § 1326(b)

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

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

rectly decided and that a majority of the Supreme Court would over-

rule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
                           No. 05-51000
                                -3-

466 (2000), Almendarez-Torres remains binding. See Rangel-Reyes v.

United States, 2006 U.S. LEXIS 4513 (U.S. June 12, 2006); United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,

126 S. Ct. 298 (2005).   Eusebio-Giron 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.
